Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement: (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions; (b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents; (c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any); (d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”); (e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company; (f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement); (g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”); (h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company; (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)); (j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or (k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 5 contracts
Sources: Investor Agreement (SK Ecoplant Co., Ltd.), Investor Agreement (SK Ecoplant Co., Ltd.), Securities Purchase Agreement (SK Ecoplant Co., Ltd.)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 18 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 5 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. During From and after the period (such period, the “Standstill Term”) commencing as date of the First Closing Date and continuing this Agreement until the later earlier of (iA) the second (2nd) anniversary termination of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board this Agreement pursuant to Section 56.1, (B) the Closing, and (iiiC) the date on which Outside Date, the Purchaser will not, and will cause its Affiliates not to, directly or indirectly, whether individually or by acting jointly or in concert with any other person (including by providing financing or other support or assistance to any other person), without the express written consent of the Board or except in accordance with the terms of this Agreement or the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Rights Agreement:
(a) propose, offer, seek, negotiate or agree to enter into any merger, public offer, take-over bid, arrangement, amalgamation, asset purchase or other than Permitted Purchases and purchases of Preemptive Right Sharesbusiness combination or similar transaction involving the Company;
(b) acquire, or propose, offer, seek, negotiate or agree to acquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or assist, advise, propose or encourage any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing other person in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, acquiring (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, rights or options to acquire any similar transaction involving securities of the Company (other than on exercise or conversion of convertible securities held by the Purchaser on the date hereof), or (ii) a material portion of the assets or property of the Company;
(c) engage in the solicitation of any recapitalizationproxies or any other activity in order to vote, restructuring, liquidation advise or other extraordinary transaction influence any party with respect to the Company, in each case without the prior written consent voting of any securities of the Board (a transaction described Company except in clauses (i) and (ii) that would result respect of the Company Meeting in a Change accordance with the terms of Control, is referred to as a “Business Combination”)this Agreement;
(hd) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, group or other group” as such terms are used act jointly or in the rules of the SEC concert with any person with respect to voting securities of the Company, except in respect of the Company Meeting in accordance with the terms of this Agreement;
(e) otherwise attempt to control or any securities to influence the management or board of directors of the Company, other than pursuant to the terms of the Investor Rights Agreement, or obtain representation on the board of directors of the Company;
(if) request enter into any discussions or propose arrangements with any third party, including any shareholder of the Company, with respect to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))the foregoing;
(jg) make any public announcement regardingor private disclosure of any consideration, intention, plan or arrangement to do or take any action that could require of the Company to make a public announcement regardingforegoing actions;
(h) advise, a potential Business Combination assist or encourage any other person in connection with any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(ki) enter into discussionsengage in any lending or short selling of Common Shares or trading involving the use of equity equivalent derivatives in respect of Common Shares. Notwithstanding the foregoing, negotiationsin the event that, arrangements or agreements with without any Person relating to breach of the foregoing actions referred to in (a) through on the part of the Purchaser or its Affiliates: (i) above; provideda third party acquires beneficial ownership of 20% or more of the voting or equity securities of the Company, however(ii) a third party formally commences a take-over bid to acquire, through commencement of a public offer or otherwise, that would result in such third party, together with any persons acting jointly or in concert, holding beneficial ownership of 20% or more of the voting or equity securities of the Company, (iii) a third party publicly announces an intention to acquire securities of the Company (whether by way of take-over bid, business combination, arrangement or other transaction) that would result in such third party, together with any persons acting jointly or in concert, holding beneficial ownership of 20% or more of the voting or equity securities of the Company, or a proposal to acquire all or substantially all of the assets of the Company, or (iv) the Company has breached its obligations under Section 5.8, then the foregoing restrictions shall automatically lapse and be of no further force or effect, and nothing contained in this agreement shall prohibit any of the actions specified in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement 5.9 by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing Purchaser or its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofAffiliates.
Appears in 3 contracts
Sources: Subscription Agreement (Canopy Growth Corp), Subscription Agreement (Canopy Growth Corp), Subscription Agreement (Constellation Brands, Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases During the Designee Period, the Shareholder shall not and purchases of Preemptive Right Sharesshall cause its Affiliates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the majority of the entire Board of Directors (excluding any representative or designee of the Shareholder), either directly or indirectly (including in a transaction described manner wilfully designed to circumvent the following provisions), alone or in clauses concert with others:
(i) and in any manner:
A. acquire, agree to acquire or make any public proposal to acquire (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, whether directly or indirectly, by purchase, tender or exchange offer) any material assets of Parent or any subsidiary of Parent; or
B. make any Share Acquisition unless after giving effect to the Share Acquisition the Shareholder and its Affiliates would Beneficially Own less than 21.0% of the outstanding shares of Common Stock, with the number of outstanding shares calculated based on the number of shares reported outstanding by Parent in its most recent quarterly report on Form 10-Q or annual report on Form 10-K, as filed with the SEC;
(ii) (A) propose to any Person or take substantial steps to effect or enter into any business combination, restructuring, recapitalization or the sale or other disposition outside the ordinary course of business of any material asset of Parent or other extraordinary transaction involving Parent or any of its subsidiaries; (B) seek election to or seek to place a representative on the Board of Directors except pursuant to the rights granted pursuant to Section 6 hereof; or (C) solicit proxies or shareholder consents or be a participant in any such solicitation for the purpose of seeking to control or influence the Board of Directors except pursuant to the rights granted pursuant to Section 6 hereof;
(iii) form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used Group in the rules connection with any of the SEC with respect to the Company or any securities foregoing (other than a Group consisting of the Company;Shareholder and its Affiliates); or
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jiv) make any public announcement regarding, or take any action that could require the Company cause Parent to make a public announcement regarding, a potential Business Combination or regarding any intention of the Shareholder to take an action which would be prohibited by any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; foregoing. provided, however, that nothing contained in this Section 2.1 the foregoing shall prevent, restrict, encumber, or limit in any manner: (A) not restrict the Investor or any ability of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Shareholder Designee from performing its exercising his/her fiduciary duties as a member of director.
(b) Notwithstanding anything to the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by contrary in this Agreement, the Purchase Agreement, Joint Venture Agreement, any Transfers between Shareholder and any Affiliates shall not be prohibited or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofsubject to Section 4.1.
Appears in 3 contracts
Sources: Shareholder Rights Agreement, Shareholder Rights Agreement (Centurylink, Inc), Shareholder Rights Agreement (Singapore Technologies Telemedia Pte LTD)
Standstill. During 10.1. From and after the period (such periodClosing, without the prior consent of the Board, the “Standstill Term”Investor hereby agrees that until such time as the earlier to occur of (x) commencing as it ceases to Beneficially Own 5% of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Total Voting Power, and (iiiy) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandinga Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (including SK ecoplant but not under common control with) the Investor and the SPV) and any other Affiliates that have received Company Confidential Information, not to, on its Subsidiaries shall not do any of the followingbehalf, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases 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 Preemptive Right SharesVoting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, acquire beneficial ownership engage in a collared hedging transaction of the Common Stock and/or Common Stock Equivalents and/or any instrument that gives following the Investor the economic equivalent of ownership of an amount of securities conclusion of the Company (a “Derivative”), except, nothing period set forth in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents9;
(c) directly effect or indirectlyseek, 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) seek any acquisition of any Voting Stock or rights or options to have called acquire any meeting Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of the stockholders its Subsidiaries or assets of the Company or propose any matter to be voted upon by the stockholders its Subsidiaries constituting a significant portion of the Companyconsolidated assets of the Company and its Subsidiaries, or (iiiii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority “solicitation” of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under the Exchange Act), proxy rules of the Commission) or seek to advise or influence any Person, written consents with respect to voting of any securities Voting Stock of the Company;
(fd) 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 securities of the Company Voting Stock in a any voting trust or subject any securities of the Company Voting Stock to any arrangement or agreement with respect to the voting of such securitiesany 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, including otherwise act, alone or in concert with others, to seek representation on or to control or influence the granting management, Board or policies of any proxy (other than pursuant to this Agreement)the Company or its Subsidiaries;
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d) of the SEC Exchange Act) with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or involving any of the matters set forth in actions items described under clauses (a) through (if) above; orhereof;
(kh) enter into discussions, negotiations, arrangements knowingly take any action which would or agreements with would reasonably be expected to result in the Company having to make a public announcement regarding any Person relating to of the foregoing actions referred to in described under clauses (a) through (f) hereof; or
(i) aboveotherwise 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 nothing contained 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 2.1 shall prevent10, restricta “Pending COC Event” means, encumberthe 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 limit in any manner: (Aii) 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 Investor execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following (c) the public announcement by the Company after the Second Closing Date that it has entered into recommends any transaction that, if consummated, would result in a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member Change of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofControl.
Appears in 3 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Arthrocare Corp), Securities Purchase Agreement (OEP AC Holdings, LLC)
Standstill. During the term of his employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent holder of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any voting securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kiii) enter into discussionsbe employed by any person that, negotiationsdirectly or through its affiliates, engages in any of the foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or other awards, plans and arrangements and any other Common Stock received or agreements otherwise acquired by the Executive in connection with any Person relating or as a result of the Executive’s employment with the Company or service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Executive, the Executive will no longer be subject to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any limitations of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSections 7(d).
Appears in 3 contracts
Sources: Separation Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. During the period (Each Stockholder agrees that, until such period, the “Standstill Term”) commencing as time that such Stockholder beneficially owns Voting Stock representing less than 5% of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the outstanding shares of Common Stock then issued and outstanding(on an as-converted basis), the Investor (including SK ecoplant and the SPV) and none of it or its Subsidiaries shall not Affiliates will, directly or indirectly, do any of the following, except as approved, invited following unless requested or waived approved in advance in writing by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares[Reserved.]
(b) acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire beneficial ownership any shares of Preferred Stock or Common Stock (including any derivative securities or contracts or instruments in any way related thereto) of the Company such that after such acquisition the Stockholder and its Affiliates or any direct or indirect parent of such Stockholder would beneficially own more than 49.99% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument (on an as-converted basis); provided that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing foregoing restriction in this Section 2.1(a3.2(b) shall prevent not apply to any acquisition (i) pursuant to Section 4.2 (Preemptive Rights) of this Agreement or prohibit any Stockholder’s exercise of its Right of First Refusal in connection with a Transfer that is permitted by Section 3.1 or (ii) that is the Investor from investing in a fund with respect to which result of operation of Section 10 (Anti-Dilution Adjustments) of the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock EquivalentsCertificate of Designations;
(c) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (iwithin the meaning of Rule 14a-1 under the Exchange Act) seek to have called vote any meeting of the stockholders Voting Stock of the Company or propose any matter its subsidiaries, or call or seek to be voted upon by the stockholders call a meeting of the Company, ’s stockholders or (ii) propose initiate any stockholder proposal for action by the Company’s stockholders or nominate for election to seek the removal of any director from the Board any person whose nomination has not been approved by a majority of the Board Company (excluding the Investor Designee, if anyother than pursuant to Article II of this Agreement);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by make any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)public announcement with respect to, or seek to advise submit a proposal for, or influence any Person, offer of (with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwithout conditions) any merger, consolidation, business combination, tender or exchange offer, purchase restructuring, recapitalization or other extraordinary transaction of the Company’s assets or businesses, purchase of any securities of involving the Company or any Derivativeof its subsidiaries or their securities or assets (except (i) any nonpublic proposal to the Board that would not require the Company, such Stockholder or any similar transaction involving the Company other Person to make any public announcement or other disclosure with respect thereto or (ii) any recapitalization, restructuring, liquidation public disclosure in any filings by the Stockholder or other extraordinary transaction its Affiliates with respect the SEC to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”extent required by applicable law or stock exchange rules);
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used defined in the rules Section 13(d)(3) of the SEC Exchange Act) in connection with respect to any Voting Stock of the Company or its subsidiaries, including with any securities of the Company;
(i) request or propose to the Board or the Company (other Stockholder or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, Affiliates; provided that taking any amendment or waiver of any provision action as required by this Agreement shall not constitute a violation of this Section 2.1 (including 3.2(e); provided further that the foregoing restriction in this clause (i))Section 3.2(e) shall not apply to any action taken in connection with the previously announced merger of Charter Communications, Inc. and the Liberty Broadband Stockholder and shall not apply upon completion of such merger;
(jf) make any public announcement regarding, or take any action that could would reasonably be expected to cause or require of the Company to make a public announcement regarding, a potential Business Combination regarding any actions prohibited by this Section 3.2;
(g) contest the validity or any enforceability of the matters set forth in clauses (a) through (i) abovethis Section 3.2; or
(kh) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements with (whether written or oral) with, or advise, assist or encourage, any Person relating other persons to do any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 3.2 shall preventlimit, restrictrestrict or prohibit (i) any confidential, encumbernon-public discussions with or communications or proposals to management or the Board by the Stockholder, its Affiliates or limit representatives related to any of the foregoing, (ii) a Stockholder’s ability to vote, Transfer, convert, exercise its rights under Section 4.2 (Preemptive Rights) or Section 3.3 (Right of First Refusal) or otherwise exercise rights with respect to its Common Stock or Preferred Stock in any manner: accordance with the terms and conditions of this Agreement and the Certificate of Designations or (Aiii) the Investor ability of any Director to vote or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its otherwise exercise his or her duties or otherwise act in his or her capacity as a member of the Board; provided, further, that, for the avoidance of doubt, any shares of Preferred Stock and Common Stock held by a Stockholder or its Permitted Transferee shall be subject to the terms and restrictions set forth in this Agreement and the Certificate of Designations, including the limitations on voting set forth in Section 12 of the Certificate of Designations. Notwithstanding the foregoing, the restrictions set forth in this Section 3.2 shall not apply if any of the following occurs (provided, that, in the event any matter described in clauses (a) or (Cb) of this paragraph has occurred and resulted in the restrictions imposed under this Section 3.2 ceasing to apply to a Stockholder, then, in the event the transaction related to such matter has not occurred within twelve (12) months of the date on which the Stockholder was released from such restrictions, then so long as such transaction is not being actively pursued at such time, the restrictions set forth in this Section 3.2 shall thereafter resume and continue to apply in accordance with their terms (provided that such restrictions shall not resume and continue to apply if such Stockholder has publicly taken any tangible steps with respect to any action or matter that would be prohibited by this Section 3.2 and such Stockholder is at that time continuing to pursue such action or matter, in which case such restrictions shall resume and continue to apply following such time as such Stockholder has ceased to pursue such action or matter)): (a) in the event the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (including, but not limited to, beneficial ownership) Voting Stock of the resulting corporation having 50% or less of the votes that may be cast generally in an election of directors if all outstanding Voting Stock were present and voted at a meeting held for such purpose; or (b) in the event that a tender offer or exchange offer for at least 50.1% of the Capital Stock of the Company is commenced by a third person (and not involving any breach, by a Stockholder, of this Section 3.2), which tender offer or exchange offer, if consummated, would result in a Change of Control, and either (1) the Investor directors (excluding any Directors) recommend that the stockholders of the Company tender their shares in response to such offer or do not recommend against the tender offer or exchange offer within ten (10) business days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (2) the directors (excluding any Directors) later publicly recommend that the stockholders of the Company tender their shares in response to such offer. Notwithstanding the foregoing, solely with respect to the Liberty Broadband Stockholder, references in this Section 3.2 to Affiliates shall mean Affiliates acting at the direction of or in concert with the Liberty Broadband Stockholder or any of its Affiliates from exercising their Permitted Transferees and any of the foregoing Persons’ respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSubsidiaries.
Appears in 3 contracts
Sources: Stock Exchange Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.)
Standstill. (a) During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date each Wynnefield Party shall not, and continuing until the later of shall cause his or its Representatives not to, directly or indirectly:
(i) seek, alone or in concert with others, (A) to call a meeting of stockholders, (B) representation on the second Board, except as specifically contemplated in Section 1 of this Agreement or (2ndC) anniversary the removal of any member of the Second Closing Date, Board;
(ii) the date on which the Investor ceases to have the right to designate a director solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Board pursuant to Section 5shares of the Common Stock, and (iii) or from the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of the Schedule 14A promulgated under the Exchange Act) in or assist, encourage, advise or influence any Third Party (as defined below) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock then issued (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(iii) (A) form or join in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any shares of Common Stock (for the avoidance of doubt, excluding any group composed solely of the Wynnefield Parties and outstandingtheir Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Investor Company’s stockholders (including SK ecoplant other than to the Wynnefield Parties and their Affiliates and the SPVnamed proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust or similar arrangement (other than (x) to the Wynnefield Parties and its Subsidiaries shall not do their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case, of the following, except Wynnefield Parties and their Affiliates);
(iv) execute any written consent as approved, invited or waived by a stockholder with respect to the Company or the Boardits Common Stock, or except as contemplated by this Agreement:;
(av) without the approval of the Board, separately or in conjunction with any Third Party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly (including in communications to the media) propose or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other than Permitted Purchases and purchases similar business transaction involving the Company or a material amount of Preemptive Right Sharesthe assets or businesses of the Company or actively encourage, directly initiate or indirectly, acquire beneficial ownership support any other Third Party in any such activity; provided that the Wynnefield Parties shall be permitted to sell or tender their shares of Common Stock and/or or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction; and provided further that if a Third Party (not a Party or an Affiliate of a Party) commences an unsolicited tender offer or exchange offer for all of the outstanding shares of Common Stock Equivalents and/or any instrument or other Voting Securities that gives is recommended by the Investor Board, then the economic equivalent of ownership of an amount of securities Wynnefield Parties shall similarly be permitted to commence a tender offer or exchange offer for all of the Company (outstanding shares of Common Stock or other Voting Securities at the same or higher consideration per share, unless the decision of the Board to recommend such Third Party unsolicited tender offer or exchange offer is supported by a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit majority of Wynnefield Designees serving on the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsBoard;
(bvi) make a tender, exchange present at any annual meeting or other public offer to acquire Common Stock and/or Common Stock Equivalentsany special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(c) directly or indirectly, (ivii) seek to have called the Company waive, amend or modify any meeting provisions of the stockholders Company’s Certificate of Incorporation or Bylaws;
(viii) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or propose make any matter request pursuant to be voted upon Rule 14a-7 under the Exchange Act or otherwise, except as is reasonably necessary to enable the Wynnefield Parties to effect a tender offer or exchange offer permitted under Section 5(a)(v);
(ix) institute, solicit or join, as a party, or remain as a class member in any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the stockholders Wynnefield Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Wynnefield Parties or ▇▇▇▇▇▇ ▇▇▇▇ and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of the Company, Wynnefield Parties from responding to or complying with a validly issued legal process (iiand the Company agrees that this Section 5(a)(ix) propose or nominate for election shall apply mutatis mutandis to the Board Company and its directors, officers, partners, members, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the Wynnefield Parties);
(x) comment publicly (including in communications to the media) concerning the Company’s management, policies, strategy, operations, financial results or affairs or any person whose nomination transactions involving the Company or any of its subsidiaries, except (i) with respect to any Extraordinary Transaction that has not been approved by a majority of the Wynnefield Designees on the Board, (ii) with respect to the Wynnefield Parties’ commencing of a tender offer or exchange offer in accordance with Section 5(v), and (iii) as otherwise expressly permitted by this Agreement;
(xi) 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 any of the Wynnefield Parties to any person in a private transaction (or a series of related private transactions) that is 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 result in the Wynnefield Parties selling in excess of 4.9% of the shares of Voting Securities beneficially owned by the Wynnefield Parties at such time, other than to a Third Party that agrees to be bound by the provisions of Section 5 of this Agreement during the term of this Agreement; or
(xii) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, partners, members, employees, agents or Affiliates of the Company, directly or indirectly, amend or waive any provision of this Agreement (including this Section 5 (a)(xii)). Notwithstanding anything to the contrary contained in this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Wynnefield Parties nor their respective Affiliates shall be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of the Company, in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Wynnefield Parties or their respective Affiliates, the Company or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to the Company of any such director or officer and applicable law, rules or regulations; (excluding B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Wynnefield Party, provided that a breach by such Parties of this Agreement is not the Investor Designeecause of the applicable requirement; (C) privately communicating to any of their potential investors or investors factual information regarding the Company, provided that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed; or (D) responding to or complying with a validly issued legal process.
(b) The provisions of this Section 5 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. Except as otherwise provided in this Agreement, the provisions of this Section 5 shall also not prevent the Wynnefield Parties from freely voting their respective shares of Common Stock.
(c) During the Standstill Period, each Wynnefield Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of the Company or any other persons to engage in actions which, if any);taken by such Party, would violate this Agreement.
(d) directly Anything to the contrary in this Section 5 or indirectlyelsewhere in this Agreement (including Section 2) notwithstanding, encouragethe Wynnefield Parties shall not be prohibited from (i) nominating directors for election at the 2021 Annual Meeting, accept (ii) submitting proposals for consideration by stockholders at the 2021 Annual Meeting; (iii) soliciting proxies for the election of its director nominees or support a tenderapproval of its stockholder proposals at the 2021 Annual Meeting, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in compliance with Regulation 14A under the Exchange Act); (iv) requesting that a proposal for consideration by stockholders at the 2021 Annual Meeting be included in the Company’s proxy materials for the 2021 Annual Meeting, in compliance with Rule 14a-8 under the Exchange Act; or seek to advise (v) making any public or influence private communication in connection with any Person, with respect to voting of any securities of the Company;
(f) deposit foregoing, in compliance with Rule 14a-9 and any securities other applicable provision of Regulation 14A under the Exchange Act. Anything to the contrary in Section 2 or elsewhere in this Agreement notwithstanding, the Company shall not be prohibited from (i) soliciting proxies in a voting trust or subject any securities of the Company opposition to any arrangement nomination, solicitation or agreement with respect proposal permitted to be made by the voting of such securities, including the granting of any proxy (other than Wynnefield Parties pursuant to this AgreementSection 5(d);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of in compliance with Regulation 14A under the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company Exchange Act or (ii) making any recapitalization, restructuring, liquidation public or other extraordinary transaction private communication in connection with respect to the Companyforegoing, in each case without compliance with Rule 14a-9 and any other applicable provision of Regulation 14A under the prior written consent Exchange Act.
(e) The provisions of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (gxii) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect Section 5(a) shall cease to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination apply following the public announcement of an Extraordinary Transaction that has been approved by the Company after the Second Closing Date that it has entered into Board and which is opposed by a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Wynnefield Designees serving on the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Settlement Agreement (Wynnefield Partners Small Cap Value Lp I), Settlement Agreement (MVC Capital, Inc.), Settlement Agreement (MVC Capital, Inc.)
Standstill. During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchasers, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Warburg Pincus & Co., and (iii) Warburg Pincus Partners LLC, shall not, without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementits Board of Directors:
(a) other than acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the Exchange Act), by purchase or otherwise, any Voting Stock of the Company or direct or indirect rights to acquire any Voting Stock of the Company, or of any successor to or person in control of the Company, or any assets of the Company or any Subsidiary or division of the Company or of any such successor or controlling person, provided, however, that the Purchasers, Warburg Pincus & Co., and Warburg Pincus Partners LLC may acquire in one or more transactions an aggregate number of shares of Voting Stock equal to the Permitted Purchases and purchases of Preemptive Right SharesAmount.
(b) make, or in any way participate, directly or indirectly, acquire beneficial ownership in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect proxies” to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securities, including any Voting Stock of the granting of any proxy Company (other than pursuant to this Agreementin such Purchaser’s Representatives’ capacities as a member of the Company’s Board of Directors in a manner consist with his or her fiduciary duties);
(gc) propose make any public announcement with respect to, or submit a proposal for or offer of (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of (including to the Company’s assets or businessesBoard of Directors), purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(hd) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used 13D Group in the rules connection with any of the SEC with respect foregoing;
(e) otherwise act or seek to control or influence the Company management or any securities Board of Directors or policies of the Company;
, whether alone or in concert with others (i) request other than in such Purchaser’s Representatives’ capacities as a member of the Company’s Board of Directors in a manner consistent with his or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)her fiduciary duties);
(jf) make any public announcement regarding, or take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ie) above;
(g) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 3.1 in a manner that would require public disclosure; or
(kh) enter into discussionsdirect or instruct any of their respective Subsidiaries, negotiationsRepresentatives or Affiliates to take any such action. Notwithstanding the foregoing, arrangements if, at any time during the Standstill Period,
(i) any person or agreements 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) acquires Beneficial Ownership of Voting Stock of the Company representing 40% or more of the then outstanding Voting Stock of the Company;
(ii) any person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) announces or commences a tender or exchange offer to acquire Voting Stock of the Company which, if successful, would result in such person or 13D Group owning, when combined with any Person relating other Voting Stock of the Company owned by such person or 13D Group, 50% or more of the then outstanding Voting Stock of the Company;
(iii) the Company enters into, or resolves to enter into, any merger, sale or other business combination transaction pursuant to which the outstanding shares of Common Stock would be converted into cash and/or securities and/or property of another person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) or 50% or more of the outstanding shares of Common Stock as of immediately prior to such transaction would be owned by persons other than the then current holders of shares of Common Stock and any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives; then, except as otherwise provided herein, the Standstill Period shall be suspended and tolled during the pendency of any such event with respect to the foregoing actions referred to in Purchasers, their respective Subsidiaries and Representatives and the provisions of subparagraphs (a) through (g) shall not be applicable to the Purchasers, their respective Subsidiaries and Representatives during the pendency of any such event. For the avoidance of doubt, the Standstill Period shall resume and be extended by an amount of time equal to the time during which such event was pending, and the provisions of subparagraphs (a) through (g) shall resume to be applicable to the Purchasers, their respective Subsidiaries and Representatives in the event that the provisions of (i) above; providedthrough (iii) cease to be applicable, howeversuch as, that nothing contained in this Section 2.1 shall preventfor example and without limitation, restrictdisposition of the Voting Stock of the Company to below 40% by the person or 13D Group, encumberwithdrawal of the tender or exchange offer by the person or 13D Group, or limit in any manner: (A) the Investor termination of merger, sale or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofother business combination transaction.
Appears in 3 contracts
Sources: Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Nuance Communications, Inc.)
Standstill. During The Stockholder agrees that, for a period of 18 months from the period (such perioddate hereof, the Stockholder will not, and will not cause or permit any of its directors, officers, partners, employees, representatives, financial, legal, accounting and other advisers and agents, including persons who after the date of this Agreement cease to be within one of the foregoing categories (collectively, “Standstill TermRepresentatives”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company affiliates or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation associates (as such terms are defined in Regulation 14A Rule 12b-2 under the Exchange Act) to (i) directly or indirectly acquire, or offer, propose or agree to acquire, any securities, debt obligations or assets (or any interests therein) of the Company or any of its subsidiaries or any rights or options to acquire any such securities, debt obligations or assets (for purposes hereof, “securities” shall include, without limitation, (x) all rights to acquire securities pursuant to the exercise of any rights in connection with any option, warrant, convertible or exchangeable security or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (y) any economic interest relating to securities, including without limitation, pursuant to a cash settled option or other derivative security, contract or instrument in any way related to the price of the underlying security), (ii) participate in the solicitation of proxies, or seek to advise or influence any Person, with respect to voting the vote of any securities of the Company;
(f) deposit person, regarding any securities or debt obligations of the Company or any of its subsidiaries, (iii) engage, or offer, propose or agree to engage, in a voting trust any merger or subject other business combination or acquisition transaction or any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, reorganization, or any purchase or sale of the Company’s any material amount of assets or businesses, purchase equity or debt securities or other indebtedness of any securities of or regarding the Company or any Derivativeof its subsidiaries, (iv) seek or propose to influence or control the Company’s management or policies, including the management and policies of its subsidiaries, (v) advise, assist, encourage, finance or invest in any similar transaction involving person in connection with any of the foregoing, (vi) disclose any plan, intention or proposal to do any of the foregoing, (vii) make any communications with the Company or its Representatives that could require the Company to make any public announcement or (iiviii) make any recapitalization, restructuring, liquidation request to waive or other extraordinary transaction with respect amend any provision of this agreement or to the Companypermit you to take any action specified herein, in each case without the prior written consent approval of the Board (a transaction described Company. Nothing in clauses (i) and (ii) that would result in a Change of Controlthis paragraph shall be deemed to prevent the Stockholder’s Representatives from engaging, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules ordinary course of the SEC with respect to the Company or any business, in brokerage, asset management, trust, underwriting, market making and other similar financial services ordinary course business activities involving securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Stockholder Agreement (Gramercy Capital Corp), Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.), Agreement for Sale of Membership Interests (Gramercy Capital Corp)
Standstill. During Subject to the period (such period, the “Standstill Term”) commencing as provisions of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingsentence next following, the Investor (including SK ecoplant and the SPV) agrees that until January 1, 1999 it and its Subsidiaries Affiliates shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, direct or indirect rights or options to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities, direct or indirect rights or options to acquire any voting securities, or securities or instruments convertible into voting securities, of the Company (a “Derivative”)Company, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, (i) seek in any "solicitation" of "proxies" to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Act)proxy rules of the SEC) securities of the Company, or seek to advise or influence any Person, person or entity with respect to any voting of any securities of the Company;
, (fc) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " within the rules meaning of Section 13(d)(3) of the SEC Exchange Act, with respect to the Company or any voting securities of the Company;
, (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jd) make any public announcement regarding, with respect to or take any action that could require make or submit a proposal or offer (with or without conditions) for the securities or assets of the Company to make a public announcement regarding, a potential Business Combination or any of extraordinary transaction involving the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates Subsidiaries, (e) submit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from making confidential, nonpublic proposals any regulatory agency with respect to the Board for a transaction involving a Business Combination following the public announcement by an acquisition of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its securities or assets, (f) otherwise act alone or in concert with others to seek to control the management, board of directors or policies of the Company; or (g) propose any of the foregoing unless and until such proposal is specifically invited by the Company. Based on the representations of Rothschild to the Company that Affiliates of Rothschild (which representation Rothschild hereby reaffirms) not under control of Rothschild have no access to any of the internal information or files of Rothschild and receive no information, recommendations or advice from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this AgreementRothschild, the Purchase AgreementCompany agrees that the prohibitions of the preceding sentence shall not apply to any Affiliates of Rothschild that are not under the control of Rothschild and are engaged in the regular business of trading in publicly-traded securities, Joint Venture Agreementso long as such affiliates have not received, or been given access to, any of the Preferred Distributor AgreementConfidential Information and have not received any instructions, recommendations or advice pertaining to an investment in each case, in accordance with or control of the terms hereof and thereofCompany from any party having access to any of the Confidential Information.
Appears in 3 contracts
Sources: Investment Agreement (Pacific Gulf Properties Inc), Investment Agreement (Five Arrows Realty Securities L L C), Investment Agreement (Five Arrows Realty Securities L L C)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director Prior to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingTermination Date, except as approvedotherwise provided in this Agreement, invited or waived by without the Company or prior written approval of the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Investor shall not, and purchases of Preemptive Right Sharesshall cause its respective controlled Affiliates, not to, directly or indirectly, in whole or in part (in each case, except as permitted by this Agreement):
(a) acquire, offer or seek to acquire, agree to acquire beneficial ownership or acquire rights to acquire (except by way of Common Stock and/or Common Stock Equivalents and/or stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis or as a result of forming a group not prohibited by Section 3(c) below), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company (other than through a “Derivative”)broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, exceptor other beneficial ownership interest in, nothing 10% or more than of the then-outstanding shares of the Common Stock in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsaggregate;
(b) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a tenderproponent of any stockholder proposal for consideration at, exchange or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other public offer business brought before, any Stockholder Meeting; (v) call or seek to acquire Common Stock and/or Common Stock Equivalentscall, or request to call of, alone or in concert with others, any Stockholder Meeting, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as amended and as may be further amended from time to time, the “Certificate of Incorporation”) or the Amended and Restated Bylaws (as amended and as may be further amended from time to time, the “Bylaws”), including any “town hall meeting”; or (vi) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) directly form, join or indirectly, (i) seek in any way participate in any group or agreement of any kind with respect to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, including in connection with any election or (ii) propose or nominate for election removal contest with respect to the Board Company’s directors or any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)stockholder proposal or other business brought before any Stockholder Meeting;
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting thereof;
(e) seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Certificate of Incorporation or Bylaws;
(f) make any public proposal with respect to: (i) any change in the number or term of directors serving on the Board or the filling of any proxy vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other than change in the Company’s management, governance, corporate structure, affairs or policies, (iv) 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 (v) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to this Agreement)Section 12(g)(4) of the Exchange Act;
(g) initiate, cause, effect (or seek, offer or propose (ito effect) any mergerExtraordinary Transaction or make, consolidationdirectly or indirectly, business combinationany proposal, tender either alone or exchange offerin concert with others, purchase of the Company’s assets or businesses, purchase of any securities of to the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in reasonably be expected to require a Change of Control, is referred to as a “Business Combination”)public announcement or disclosure regarding any such matter;
(h) act in concert enter into any agreements with any Third Party with respect to any of the foregoing, or advise, assist or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyforegoing;
(i) publicly make or in any way advance publicly any request or propose to proposal that the Company or the Board amend, modify or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));Agreement; or
(j) make any public announcement regarding, or take any action that could require challenging the validity or enforceability of this Section 3 or this Agreement unless the Company to make a public announcement regarding, a potential Business Combination is challenging the validity or any enforceability of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovethis Agreement; provided, however, that nothing contained (i) the restrictions in this Section 2.1 3 shall not prevent, restrict, encumber, prohibit or limit in any manner: restrict Investor or its Representatives from making (A) any factual statement as required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over the Investor or any party from whom information is sought (so long as such request did not arise as a result of its Affiliates from making confidentialaction by Investor), nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) any private or confidential communication to or with the Investor Designee from performing its duties as a member Board or any officer or director of the Board; Company or legal counsel that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties or (C) any private or confidential communication regarding the Company to or with Investor’s or its controlled Affiliates’ investors or potential investors that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties and (ii) the restrictions in this Section 3 shall not restrict Investor or any of its Affiliates Representatives from exercising their respective rightstendering shares, performing their respective obligations receiving payment for shares or otherwise consummating participating in any such transaction on the transactions contemplated same basis as the other stockholders of the Company or from participating in any such transaction that has been approved by the Board, subject to the other terms of this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Cooperation Agreement (Cutera Inc), Cooperation Agreement (Cutera Inc), Cooperation Agreement (Pura Vida Investments, LLC)
Standstill. Section 4.1. During the period (such periodStandstill Period, the “Standstill Term”) commencing as Shareholder shall not, directly or indirectly, and shall cause its Representatives (to the extent acting on behalf of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPVShareholder) and its Subsidiaries beneficially own less than five percent (5.0%) of Group Members not, directly or indirectly, to, without the shares of Common Stock then issued and outstandingprior written consent of, or waiver by, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases subject to Section 4.2, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to the Company or the Board of Preemptive Right SharesDirectors) to acquire, directly by purchase or indirectlyotherwise (including through the acquisition of Beneficial Ownership), any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities (including any Equity Securities or Voting Securities) or Derivative Instruments, of the Company or any Subsidiary or Affiliate of the Company or any successor to or Person in Control of the Company, or any securities (including any Equity Securities or Voting Securities) or indebtedness convertible into or exchangeable for any such securities or indebtedness; provided that the Shareholder may acquire, offer or seek to acquire, agree to acquire or make a “Derivative”), except, nothing in this Section 2.1(aproposal to acquire Ordinary Share Equivalents (and any securities (including any Equity Securities or Voting Securities) shall prevent convertible into or prohibit the Investor from investing in a fund exchangeable for Ordinary Share Equivalents) and Derivative Instruments with respect to which Ordinary Share Equivalents, if, immediately following such acquisition, the Investor does collective Beneficial Ownership of Ordinary Share Equivalents of the Shareholder and its Group Members, as a group, would not have or share decision-making authority over investment or divestment decisionsexceed the Standstill Level;
(b) make offer, or seek to acquire, or participate in any acquisition of a tendermajority of the consolidated assets of the Company and its Subsidiaries, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentstaken as a whole;
(c) directly conduct, fund or indirectlyotherwise become a participant in any “tender offer” (as such term is used in Regulation 14D under the Exchange Act or the Israeli Companies Law) involving Equity Securities, (i) seek to have called Voting Securities or any meeting of the stockholders of the Company securities convertible into, or propose any matter to be voted upon exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the stockholders Board of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Directors;
(d) directly otherwise act in concert with others to seek to control or indirectly, encourage, accept influence the Board of Directors or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities shareholders of the Company or its Subsidiaries or Affiliates; provided that nothing in this clause (if such offer d) shall preclude the Shareholder or proposal would, if consummated, result its Representatives from engaging in a Change of Control of discussions with the Company, such offer Company or proposal is referred to as an “Acquisition Proposal”)its Representatives;
(e) directly make or indirectly, solicit proxies or consents or propose or seek join or become a participant (as defined in a solicitation Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or in any way knowingly encourage) any “solicitation” of “proxies” (as such terms are defined in Regulation 14A as promulgated by the SEC and assuming for this purpose that the Company was subject to the proxy rules under Section 14 of the Exchange Act) (including, in each case, similar concepts under Israeli law, including submission of positions statements), or seek consent to vote any Voting Securities or any of the voting securities of any Subsidiaries or Affiliates of the Company (including through action by written consent), or otherwise knowingly advise or influence any Person, Person with respect to the voting of any securities of the CompanyCompany or its Subsidiaries or Affiliates;
(f) deposit make any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement public announcement with respect to the voting of such securitiesto, including the granting of any proxy or solicit or submit a proposal for, or offer, seek, propose or indicate an interest in (other than pursuant to this Agreement);
(g) propose (iwith or without conditions) any merger, consolidation, business combination, “tender offer” (as such term is used in Regulation 14D under the Exchange Act or exchange offerthe Israeli Companies Law), recapitalization, reorganization, purchase or license of a material portion of the Company’s assets assets, properties, securities or businesses, purchase of any securities indebtedness of the Company or any DerivativeSubsidiary or Affiliate of the Company, or any other similar extraordinary transaction involving the Company, any Subsidiary of the Company or any of its securities or indebtedness, or enter into any discussions, negotiations, arrangements, understandings or agreements (iiwhether written or oral) with any recapitalization, restructuring, liquidation other Person regarding any of the foregoing;
(g) call or other extraordinary transaction with respect seek to call a meeting of shareholders of the Company or initiate any shareholder proposal or meeting agenda item for action of the Company’s shareholders, in each case without the prior written consent of or seek election or appointment to or to place a representative on the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Directors or seek the removal of any director from the Board of Directors;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join join, become a member or in any way participate in a “partnershipGroup (other than with the Shareholder, limited partnership, syndicate, any of its Group Members or any counterparty (other group” as such terms are used than a Prohibited Transferee) in the rules of the SEC connection with a Hedging Arrangement that complies with Section 2.1(c)(iv)) with respect to the securities of the Company or any securities of the Companyits Subsidiaries or Affiliates;
(i) request deposit any Voting Securities in a voting trust or propose similar Contract or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Board or the Company (Shareholder or any of its officerswholly owned Subsidiaries, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly (ii) as part of a Hedging Arrangement that complies with Section 2.1(c)(iv) or indirectly, any amendment or waiver of any provision of this (iii) in accordance with Section 2.1 (including this clause (i)3.1);
(j) make any public announcement regardingproposal or disclose any plan, or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to make any proposal or disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) knowingly take any action or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to take any action on its or their behalf, that could would reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or any of its Subsidiaries or Affiliates to publicly disclose any of the matters set forth foregoing actions or the possibility of a business combination, merger or other type of transaction or matter described in clauses this Section 4.1;
(al) through (i) aboveknowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party with respect to any of the foregoing; or
(km) enter into discussionsdirectly or indirectly, negotiationscontest the validity of, arrangements any provision of this Section 4.1 (including this subclause) or agreements with any Person relating Section 3.1 (whether by legal action or otherwise).
Section 4.2. The prohibition in Section 4.1(a) shall not apply to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) activities of the Investor Shareholder or any of its Affiliates from making confidentialGroup Members in connection with:
(a) acquisitions made as a result of a stock split, nonpublic proposals to stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board for of Directors; or
(b) acquisitions made in connection with a transaction involving a Business Combination following or series of related transactions in which the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor Shareholder or any of its Affiliates from exercising their respective rightsGroup Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, performing their respective obligations Voting Securities or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementDerivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the Preferred Distributor Agreementtime of the consummation of such acquisition, provided that in connection with any such acquisition, (i) the Shareholder or such applicable Group Member, as the case may be, either (A) causes such entity to divest the Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the acquired entity within a period of one hundred twenty (120) calendar days after the date of the consummation of such acquisition or (B) divests the Equity Securities, Voting Securities or Derivative Instruments, or any other securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the Shareholder and its Affiliates, in each casean amount so that the Shareholder and its Affiliates, together with such acquired business entity, shall not, acting alone or as part of a Group, directly or indirectly, Beneficially Own a number of Ordinary Share Equivalents in accordance with excess of the Standstill Level following such acquisition, and (ii) prior to the disposition thereof, such Ordinary Share Equivalents or other Voting Securities remain subject to the terms hereof and thereofof this Agreement in all respects.
Appears in 3 contracts
Sources: Stockholders Agreement (Allergan PLC), Shareholder Agreement (Allergan PLC), Shareholder Agreements (Teva Pharmaceutical Industries LTD)
Standstill. During From the period date of this Agreement until the Expiration Date (such period, the “Standstill TermPeriod”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the SEC) 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 term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage or advise any other Person or assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than Permitted Purchases and purchases such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of Preemptive Right Sharesthe Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(d) (i) engage in, or become a party to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or clause (ii) if such acquisition or transaction would result in the Investors having beneficial ownership of greater than 9.99% of the Company’s outstanding common stock;
(e) sell, offer or agree to sell, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives through swap or hedging transactions or otherwise, voting rights decoupled from the Investor the economic equivalent of ownership of an amount of securities underlying common stock of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit held by the Investor from investing in a fund with respect Investors to which the Investor does not have or share decision-making authority over investment or divestment decisionsany Third Party;
(bf) make a tenderor in any way participate, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called in any meeting tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the stockholders assets of the Company and its subsidiaries, taken as a whole (each, an “Extraordinary Transaction”), it being understood and agreed that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or propose otherwise participating in any matter to be voted upon by 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;
(g) enter into a voting trust or proxy, arrangement or agreement or subject any Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved by the Board;
(h) (i) 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 set forth herein, or (ii) propose seek, alone or nominate for election to in concert with others, the Board removal or resignation of any person whose nomination has not been approved by a majority member of the Board (excluding other than the Investor Designee, if anyNew Director);
(di) directly make or indirectly, encourage, accept be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or support a tender, exchange otherwise);
(j) make any request for stock list materials or other offer or proposal by any other Person or group (an “Offeror”) for securities books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(if such offer k) make any public statement or public proposal wouldwith respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, if consummated, result (ii) any change in a Change of Control the capitalization or dividend policy of the Company, such offer (iii) any other material change in the Company’s management, business or proposal is referred corporate structure, (iv) any waiver, amendment or modification to as an “Acquisition Proposal”);
(e) directly the Company’s certificate of incorporation or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)By-Laws, or seek to advise or influence any Person, with respect to voting other actions which may impede the acquisition of any securities of the Company;
(f) deposit any securities control of the Company in by any person, (v) causing a voting trust or subject any class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any arrangement securities exchange or agreement with respect to the voting (vi) causing a class of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any Derivativelitigation, arbitration or any similar transaction other proceeding against or involving the Company or any of its current or former directors or officers (iiincluding derivative actions) in order to effect or take any recapitalizationof the actions expressly prohibited by this paragraph 6; provided, restructuringhowever, liquidation or other extraordinary transaction that for the avoidance of doubt the foregoing shall not prevent any Restricted Person 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 CompanyCompany against a Restricted Person, in each case without the prior written consent of the Board or (D) responding to or complying with a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)validly issued legal process;
(hm) act in concert enter into any negotiations, agreements or understandings with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms that the Investors are used in the rules of the SEC with respect prohibited from taking pursuant to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveparagraph 6; or
(kn) enter into discussions, negotiations, arrangements make any request or agreements with submit any Person relating proposal to amend or waive the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in terms of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, case which would reasonably be expected to result in accordance with the terms hereof and thereofa public announcement of such request or proposal.
Appears in 3 contracts
Sources: Investment Agreement (Cooperman Leon G), Letter Agreement (Glen Capital Partners Focus Fund, L.P.), Board Matters Agreement (Lionbridge Technologies Inc /De/)
Standstill. During Each Investor agrees that, from the period (such period, date of this Agreement until the “Standstill Term”) commencing as expiration of the First Closing Date and continuing until the later Standstill Period, neither it nor any of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates or Family Members will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) Associates and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingFamily Members not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly, in any manner, acting alone or in concert with others, take any of the followingfollowing actions or advise, except as approvedrecommend, invited request, encourage, solicit, influence or waived by induce any other person to take any of the Company or the Boardfollowing actions, or as contemplated by this Agreementannounce any intention to take any of the following actions:
(a) 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 than Permitted Purchases and purchases of Preemptive Right Sharesbusiness for consideration, or nominate any candidate for election to the Board;
(b) engage, directly or indirectly, acquire beneficial ownership in any “solicitation” (as defined in Rule 14a-1 of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent Regulation 14A) of ownership of an amount of securities of the Company proxies (or written consents) or otherwise become a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce or seek to advise advise, encourage or influence any Person, other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or 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;
(c) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(d) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(fe) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC 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 or any securities of their respective Affiliates or Associates);
(f) deposit any shares of voting stock of the CompanyCompany 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;
(g) 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;
(h) 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 or a change in the size or composition of the Board or the committees of the Board;
(i) request acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board, 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, change in structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, 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; 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 shareholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(k) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or 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 the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i))3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(jl) make institute, solicit, assist or join any public announcement regardinglitigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(m) take any action that could require challenging the Company to make a public announcement regarding, a potential Business Combination validity or enforceability of any provisions of the matters set forth in clauses (a) through (i) abovethis Section 3; or
(kn) enter into any negotiations, discussions, negotiationsagreement, arrangements arrangement or agreements understanding with any Person relating to person concerning any of the foregoing actions referred (other than this Agreement) or encourage or solicit any person to in (a) through (i) above; providedundertake any of the foregoing activities. Notwithstanding the foregoing, however, that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prohibit or limit in any mannerrestrict the Investors from: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to communicating privately with the Board for a transaction involving a Business Combination following or the public announcement by Chief Executive Officer of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) the Investor Designee from performing its duties as a member communicating privately with stockholders of the Board; Company and others in a manner that does not otherwise violate this Section 3, or (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investor Investors or any of its Affiliates from exercising their respective rightsAffiliates or Associates, performing their respective obligations or otherwise consummating provided that a breach by Investor of this Agreement is not the transactions contemplated by cause of the applicable requirement. As used in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with :
(i) the terms hereof “Affiliate” and thereof.“Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include persons who become Affiliates or Associates of any person subsequent to the date of this Agreement;
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. During So long as the period (such periodCompany is in compliance with its obligations under this Agreement, then unless approved in advance by the “Standstill Term”) commencing as Board of Directors of the First Closing Date and continuing until Company, each Holder agrees that neither it nor any of its Representatives acting on behalf of such Holder will, for a period ending immediately after the later of (i) the second (2nd) anniversary annual shareholders meeting of the Second Closing DateCompany in 2016 (and in all events no later than December 31, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 52016), and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases make any proposal to the Board of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders Directors of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company’s Representatives or any of the Company’s stockholders regarding, such or make any public announcement, proposal or offer or proposal is referred to as an (including “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (solicitation” of “proxies” as such terms are defined or used in Regulation 14A under of the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose offering (i) any merger, consolidation, business combination, merger, tender or exchange offer, purchase of the Company’s assets exchange offer or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring, recapitalization, restructuring, liquidation or other extraordinary similar transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to involving the Company or any securities of the Company;
(i) request or propose to the Board or its subsidiaries, except in each case solely in connection with contractual arrangements between MSKCC and the Company or its then existing subsidiaries, (or iii) any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor acquisition by MSKCC or any of its Affiliates from making confidentialof any of the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, nonpublic proposals or rights or options to acquire interests in any of the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, (iv) any proposal by MSKCC to seek representation on the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of Directors of the BoardCompany; or or
(Cb) form an Exchange Act Section 13(d) “group” with any third party to take any of the Investor or actions set forth in Section 4.1(a);
(c) in the case of MSKCC together with any of its Affiliates from exercising their respective rightsAffiliates, performing their respective obligations acquire (or otherwise consummating propose or agree to acquire), of record or beneficially, by purchase or otherwise, any equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementCompany, or rights or options to acquire interests in any of the Preferred Distributor Agreement, Company’s equity securities representing in each case, aggregate more than one percent (1%) of outstanding voting power in accordance with shares of the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Actinium Pharmaceuticals, Inc.), Investors’ Rights Agreement (Memorial Sloan-Kettering Cancer Center)
Standstill. During From the period date of this Agreement until the expiration of the Commitment Period, each of the Investors shall not, and shall cause its Affiliates (such periodcollectively, the “Standstill TermRestricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateshall instruct their respective Representatives not to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases engage in any “solicitation” (as such term is used in the proxy rules of Preemptive Right Shares, directly the SEC) of proxies or indirectly, acquire beneficial ownership consents with respect to the election or removal of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities directors of the Company (or become a “Derivative”), except, nothing participant” (as such term is used in this Section 2.1(athe proxy rules of the SEC) shall prevent in any such solicitation of proxies or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsconsents;
(b) make (i) 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 set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board, (iii) conduct a tenderreferendum of stockholders of the Company or (iv) seek to call, exchange request the call of or join with any other public offer stockholder in a request to acquire Common Stock and/or Common Stock Equivalentscall, a special meeting of the Company’s stockholders;
(c) directly make or indirectly, be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act) relating to the Company;
(d) encourage or advise any Person or assist any Person in encouraging or advising any other Person (i) seek with respect to have called the giving or withholding of any meeting proxy or consent relating to, or other authority to vote, any Voting Securities, or (ii) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with management’s recommendation in connection with a particular matter, in the case of each of (i) and (ii), solely with respect to the election or removal of directors;
(e) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of the stockholders Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with the other Investors and Affiliates of the Company Investors with respect to Voting Securities;
(f) acquire, or propose offer, seek or agree to acquire, by purchase or otherwise, or direct any matter to be voted upon by Third Party in the stockholders acquisition of, any Voting Securities of the Company, or (ii) propose engage in any swap or nominate for election hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Board any person whose nomination has not been approved by a majority Investors having beneficial ownership of more than 10.0%, or economic exposure to more than 10.0%, of the Board (excluding the Investor Designee, if any)outstanding Company Shares;
(dg) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in enter into a voting trust or subject any securities of the Company to any trust, arrangement or agreement with respect to the any Voting Securities, or subject any Voting Securities to any voting of such securitiestrust, including the granting of any proxy (arrangement or agreement, other than pursuant to (i) this Agreement), (ii) solely with the other Investors or Affiliates of the Investors, or (iii) granting proxies to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting;
(gh) propose except as set forth herein, make any public proposal with respect to (i) any merger, consolidation, business combination, tender change in the number or exchange offer, purchase term of directors or the Company’s assets or businesses, purchase filling of any securities of vacancies on the Company or any DerivativeBoard, or any similar transaction involving the Company or (ii) any recapitalizationwaiver, restructuring, liquidation amendment or other extraordinary transaction with respect modification to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities Governing Documents of the Company;
(i) request grant any proxy, consent or propose other authority to vote with respect to the Board election of directors other than to the named proxies included in the Company’s proxy card for an annual meeting;
(j) engage in, or the Company (offer to or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to engage in, directly or indirectly, any amendment transaction (including through swap or waiver hedging transactions or otherwise) that (i) reduces in any material respect the economic risk of ownership of any Company Shares owned by it or the other Restricted Persons or (ii) decouples the economic risk of ownership from the underlying Voting Securities owned by it or the other Restricted Persons;
(k) 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) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Voting Securities;
(l) either alone or in concert with others, directly or indirectly, make any tender offer, exchange offer or be a party to any merger, consolidation, acquisition, business combination, purchase of a division, purchase of substantially all of the assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company or any of its subsidiaries or its or their respective securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Restricted Persons or their Representatives from tendering shares, receiving payment for shares or otherwise participating in any such transaction initiated by a Third Party on the same basis as other stockholders of the Company or from participating in any such transaction that has been approved by the Board);
(m) institute, solicit, assist or join 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) in order to effect or take any of the actions expressly prohibited by this paragraph 8 other than to enforce the provisions of this Agreement and to defend (and/or assert counterclaims in) any litigation in which any Restricted Person is a defendant;
(n) make any request for stock list materials or other books and records of the Company under Section 2-512 of the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(o) 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 any solicitation described in clauses (a), (b), (c) or (m) above;
(p) publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 2.1 (including this clause (i));paragraph 8; or
(jq) make any public announcement regardingrequest or submit any proposal to amend or waive the terms of this Agreement, or take any action that could require the Company in each case which would reasonably be expected to make result in a public announcement regardingof such request or proposal. Notwithstanding anything to the contrary in this Agreement, a potential Business Combination nothing in this paragraph 8 shall prohibit or restrict the Investors from: (i) communicating privately with the Board or any of the matters set forth Company’s officers regarding any matter in clauses a manner that does not otherwise violate this Section 8; (aii) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained in this Section 2.1 shall prevent, restrict, encumberhas, or limit in any manner: (A) may have, jurisdiction over the Investor Investors or any of their respective Affiliates in a manner that does not otherwise violate this paragraph 8; or (iii) communicating with its investors in quarterly or annual letters provided such communications are subject to standard confidentiality obligations. The Investors acknowledge and agree that they shall be liable for any breach by their respective Affiliates from making confidentialor Representatives of any of the terms of this Agreement applicable to such Representatives. In addition, nonpublic proposals the Company agrees to provide the Investors, upon the Investors’ reasonable request, with the same degree, type and frequency of access to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member and members of the Board; or (C) Company’s senior management that is customarily provided to other stockholders with similarly sized shareholdings in the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Letter Agreement (PHH Corp), Letter Agreement (EJF Capital LLC)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date Period and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to unless otherwise approved by the Board pursuant to Section 5of Directors (other than the Series B Designees), each Holder will not, and (iii) the date on which the Investor (including SK ecoplant and SPV) and will cause each of its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingAffiliates not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, by joining a partnership, limited partnership, syndicate or other than Permitted Purchases and purchases 13D Group or otherwise, (A) Beneficial Ownership of Preemptive Right Sharesany Voting Securities, directly Derivative Securities or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of other securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer any rights to acquire Common Stock and/or Common Stock Equivalents;
(c) directly whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or indirectly, (i) seek to have called any meeting combination of the stockholders of the Company foregoing) any Voting Securities, Derivative Securities or propose any matter to be voted upon by the stockholders other securities of the Company, or other than (i) the acquisition of the shares of the Series B Stock pursuant to the Purchase Agreement, (ii) propose shares of Common Stock and other securities, if any, issuable upon the conversion of the Series B Stock, (iii) the acquisition of Voting Securities pursuant to Sections 4.2 and 4.3 hereof, (iv) the acquisition of Voting Securities and Derivative Securities as a result of any stock splits, stock dividends or nominate for election other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities or Derivative Securities generally, but only to the Board extent any person whose nomination has not been such securities are owned by a Holder, (v) in a transaction in which any Holder acquires an interest in an entity that owns shares of Voting Securities of the Company representing 2% or less of the Total Voting Power, or (vi) any acquisition of Voting Securities approved by a majority of the Directors (other than the Series B Designees) (clauses (i) through (vi) are referred to collectively as "Permitted Acquisitions") or (B) the Company or any of its Subsidiaries or all or substantially all of the assets of the Company or any of its Subsidiaries except pursuant to Section 4.2 hereof or as approved by a majority of the Directors (other than the Series B Designees);
(b) engage in any "solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of proxies or consents relating to the election of directors with respect to the Company, or become a "participant" in any "election contest" (within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than nominees for director who are to be elected by the Holders of Series B Stock in accordance with the Certificate of Designations;
(excluding c) induce or attempt to induce any other Person to initiate any stockholder proposal to seek election to or seek to place a representative on the Investor Designee, if anyBoard of Directors (except pursuant to the Certificate of Designations) or seek the removal of any member of the Board of Directors of the Company);
(d) directly in any manner, agree, attempt, seek or indirectlypropose to deposit any Voting Securities, encourage, accept Derivative Securities or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company or any rights to acquire (if such offer whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or proposal would, if consummated, result in a Change of Control any combination of the Companyforegoing) any Voting Securities, Derivative Securities or other securities of the Company in any voting trust or similar arrangement (other than any such offer voting trust or proposal is referred to as an “Acquisition Proposal”similar arrangement among two or more Holders);
(e) directly publicly announce any intention, plan or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under arrangement inconsistent with the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;foregoing; or
(f) deposit any securities form or join in the formation of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement 13D Group with respect to the voting of such securitiesany Voting Securities, including the granting of any proxy (other than pursuant to this Agreement)any such "group" consisting exclusively of Holders and any Affiliates of the Holders;
(g) propose except as provided in Section 4.2, finance (ior arrange financing for) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction Person in connection with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 3.1 shall prevent, restrict, encumber, or (i) limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member rights of the Board; or (C) the Investor or any Investors under each of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Certificate of Designations, and Registration Rights Agreement, (ii) prohibit any individual who is serving as a Director, solely in his or her capacity as a Director, from (x) exercising his or her fiduciary duties, (y) taking any action or making any statement at any meeting of the Preferred Distributor AgreementBoard of Directors or of any committee thereof, in each caseor (z) making any statement or disclosure required under federal securities Laws or other applicable Law, in accordance with (iii) restrict any disclosure or statements required to be made by any Investor under applicable Law, or (iv) limit the terms hereof and thereofrights of the Investors pursuant to Section 4.2 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Phillips Van Heusen Corp /De/), Investors' Rights Agreement (Phillips Van Heusen Corp /De/)
Standstill. During Without Buyer’s or Seller’s consent, as applicable, Seller and Buyer, respectively, shall not, and shall cause their respective Exchange Act Affiliates not to, for a period of two years from the period date of this Agreement: (such perioda) purchase or otherwise acquire, or offer, seek, propose, or agree to acquire, ownership (including beneficial ownership as defined in Rule 13d-3 under the “Standstill Term”Exchange Act) commencing as of the First Closing Date and continuing until the later of any (i) the second (2nd) anniversary securities of the Second Closing Dateother Party or any of its Exchange Act Affiliates, as applicable (a “Public Counterparty”), or (ii) direct or indirect rights or options to acquire any such securities described in Section 5.7(a)(i) or any securities convertible into any such securities described in Section 5.7(a)(i) (collectively, the date on which securities described in Section 5.7(a)(i) and Section 5.7(a)(ii) are “Securities”); (b) seek or propose, alone or in concert with others, to control or influence in any manner the Investor ceases to have management, the right to designate board of directors or the policies of the Public Counterparty, including a director to the Board proposal pursuant to Section 5, and Rule 14a-8; (iiic) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardmake, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesin any way participate, directly or indirectly, acquire beneficial ownership in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A the proxy rules under the Exchange Act)Act and the regulations thereunder) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of such securitiesany voting securities of a Public Counterparty; (d) make any proposal or any statement regarding any proposal, whether written or oral, to the board of directors of a Public Counterparty or any director or officer of a Public Counterparty or otherwise make any public announcement or proposal whatsoever with respect to any other transaction or proposed transaction between the Parties, any of a Public Counterparty’s security holders, or any of their respective Exchange Act Affiliates, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationacquisition, tender or exchange offer, purchase merger, sale of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativesecurities, or any similar transaction involving other business combination, unless (i) the Company Public Counterparty’s board of directors or its designated representatives have requested in advance the submission of such a proposal, (ii) such proposal is directed to the Public Counterparty’s board of directors or its designated representatives, and (iii) any recapitalizationpublic announcement with respect to such proposal is approved in advance by the Public Counterparty’s board of directors; or (e) providing financing (including guarantees), restructuringin whole or in part, liquidation or other extraordinary transaction to any Person with respect to the Company, in each case without the prior written consent of the Board (a transaction described matters in clauses (ia)-(d) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision above of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.7.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spruce Power Holding Corp), Asset Purchase Agreement (New Jersey Resources Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing Except as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as otherwise contemplated by this Agreement:
agreement, ---------- or unless the New Shareholder is invited to do otherwise by the Company's board of directors, during the Standstill Period, the New Shareholder shall not, and shall not permit any of its affiliates (awithin the meaning of Rule 12b-2 under the Exchange Act) other than Permitted Purchases (including, without limitation, ▇▇▇▇▇ ▇▇ and purchases ▇▇▇▇▇'▇ Controlled Subsidiaries), or anyone acting on behalf of, or in concert with, the New Shareholder or any of Preemptive Right Sharesits affiliates, to, directly or indirectly:
5.1 acquire, announce an intention to acquire, 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 (within the meaning of section 13(d)(3) of the Exchange Act) or otherwise, any (a) assets, businesses or properties of the Company or any of its subsidiaries, other than in the ordinary course of business, or (b) Equity Securities;
5.2 participate in the formation or encourage the formation of, or join or in any way participate with, any partnership, limited partnership, syndicate, group or other person or entity that owns or seeks to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or Equity Securities;
5.3 solicit, or participate in any instrument that gives solicitation of, proxies or become a participant in any election contest (the Investor terms used in this section 5.3 having the economic equivalent 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 ownership one or more shareholder proposals with respect to the Company or induce any other person to initiate any shareholder proposal;
5.5 seek to place designees on the board of an amount directors of securities the Company, seek the removal of any member of the board of directors of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities shareholders of the Company;
(f) 5.6 deposit any securities of the Company Equity Securities in a voting trust or subject any securities of the Company Equity Securities to any a voting agreement or other agreement or arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)voting;
(g) propose (i) any merger5.7 otherwise act, consolidationalone or in concert with others, business combinationto seek to control the management, tender board of directors, policies or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities affairs of the Company or solicit, propose, seek to effect or negotiate with any Derivativeother person or entity (including, or without limitation, the Company) with respect to any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation form of business combination or other extraordinary transaction with respect to the CompanyCompany or any of its subsidiaries or any restructuring, in each case without the prior written consent of the Board (a recapitalization, similar transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used transaction not in the rules ordinary course of the SEC business with respect to the Company 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;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 foregoing; or
(i) 5.8 request or propose to the Board or the Company (or any of its directors, officers, directorsemployees or agents) to amend or waive any provision of this section 5 (including, Affiliates employeeswithout limitation, attorneys, accountants, financial advisors and other professional representatives), directly this section 5.8) or indirectly, otherwise seek any amendment modification to or waiver of any provision of the agreements or obligations of the New Shareholder or its affiliates (including, without limitation, ▇▇▇▇▇ ▇▇ and Bayer's Controlled Subsidiaries) under this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or section 5. Notwithstanding any of the matters set forth in clauses (a) foregoing sections 5.1 through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to 5.8 and during the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.Standstill Period:
Appears in 2 contracts
Sources: Shareholder Agreements (Schein Pharmaceutical Inc), Shareholder Agreements (Schein Pharmaceutical Inc)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that during the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Standstill Period he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall behalf not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire by purchase, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange offer, agreement or other offer business combination or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting manner beneficial ownership of any securities of the Company, if after completion of such acquisition or proposed acquisition, the members of the Shareholder Group, in the aggregate, would beneficially own more than ten percent (10%) of the outstanding shares of Common Stock (based on the latest annual, quarterly or other report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), excluding the acquisition of equity-based compensation pursuant to Section 11 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation;
(fb) deposit submit any securities shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of the Company in a voting trust nomination or subject other business for consideration, or nominate any securities of the Company to any arrangement or agreement with respect candidate for election to the voting of such securitiesBoard or oppose the directors nominated by the Board, including the granting of any proxy (other than pursuant to as expressly permitted by this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, 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 (i) with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement), (ii) to the extent such a group may be deemed to result with the Company any of its Affiliates as a result of this Agreement or (iii) a voting agreement entered into pursuant to a Sale Transaction (as defined below) which has been approved by a majority of the Board;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act, in each case, to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 in 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 any shareholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the 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 initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek 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 cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than the Shareholder Group and their Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been publicly announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇, in his capacity as a shareholder of the Company, to vote in favor of a Sale Transaction that was approved by the Board;
(g) 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 provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the Company, or members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to 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;
(i) request or propose to the Board or the Company (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 officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make any public announcement regarding, demand or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any request for inspection of the matters set forth in clauses (a) through (i) above; orCompany’s records under the Georgia Business Corporation Code;
(k) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(l) take or cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit ▇▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either approved by the Board or required for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement ▇▇▇▇▇▇▇ to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. During the period (such period18.1 Subject to Clause 18.2, the “Standstill Term”) commencing as each of the First Closing Date Sellers agrees and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateundertakes that, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Purchaser, from the date of this Agreement until Closing (a transaction described at which time the standstill provisions of the Relationship Agreement and the Standstill and Lock-Up Agreement shall come into force) or, if earlier, termination of this Agreement (in clauses accordance with its terms) it will not, and will procure that no member of its Group will:
(ia) and (ii) that would result acquire or offer to acquire, or knowingly cause or actively encourage or procure any other person to acquire or offer to acquire, any interest in a Change any shares or other securities of Control, is referred to the Purchaser as a “Business Combination”)result of which it or any other person including any member of its Group will or may acquire an interest in any shares or other securities of the Purchaser;
(hb) announce or make, or knowingly cause or procure any other person to announce or make on behalf of itself or any of any member of its Group or persons acting in concert with it or any member of its Group, an offer for the whole of the ordinary share capital of the Purchaser whether by tender offer or scheme of arrangement (under section 896 of the Companies Act) or otherwise (each being a General Offer) or (other than as required by the Code) announce that it or any member of its Group or any person acting in concert with it or any member of its Group is interested in acquiring the Purchaser;
(c) do any act as a result of which it or any member of its Group or any person with which it or any member of its Group is acting in concert may become obliged (under the Code or other applicable law or regulation) to announce or make a General Offer to acquire the Purchaser;
(d) act in concert with any Third Party other person in connection with any offer to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules acquire control of the SEC Purchaser to be made or announced by that other person or any member of its Group; or
(e) act in concert with any person with respect to the Company holding, voting or disposition of any shares or other securities of the CompanyPurchaser;
(if) request solicit, or propose make or participate in any solicitation of, or seek to persuade, shareholders of the Purchaser to vote in a particular manner at any meeting of the shareholders of the Purchaser, or requisition or join in requisitioning any general meeting of the Purchaser to consider or vote on a Board Control-Seeking Proposal;
(g) actively or publicly make any proposals for any merger, consolidation or share exchange involving shares or other securities of the Company Purchaser; or
(h) enter into any agreement or act in concert with any person in relation to any of the foregoing.
18.2 The restrictions in Clause 18.1 shall not:
(a) apply if a Seller or any member of its officersGroup announces an offer under Rule 2.7 of the Code to acquire the Purchaser, directorsor takes any other action which would require that Seller or any member of its Group to make an offer under Rule 9 of the Code, Affiliates employeesin each case if such offer is recommended by the directors of the Purchaser (and, attorneysfor the avoidance of doubt, accountants, financial advisors and other professional representatives), directly or indirectly, no Seller nor any amendment or waiver member of its Group will take any provision of this Section 2.1 (including this clause (i)such action unless it has first obtained such a recommendation);
(jb) make apply if a third party which is not acting in concert with either Seller or any public announcement regardingmember of their respective Groups makes, or take announces under Rule 2.7 of the Code, an offer to acquire the Purchaser’s issued ordinary share capital (whether such offer is recommended or not);
(c) apply to the acquisition by any action that could require the Company to make pension fund of a public announcement regarding, a potential Business Combination Seller or any member of its Group of shares or other securities in the Purchaser provided that the assets of the matters set forth in clauses (a) through (i) abovepension fund are managed under an agreement or arrangement with a third party which gives such third party absolute discretion regarding dealing, voting and acceptance decisions; or
(kd) enter into discussions, negotiations, arrangements or agreements with any Person relating apply to the foregoing actions referred to acquisition of any interest in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, shares or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member other securities of the Board; Purchaser by any connected fund manager or principal trader (C) as defined in the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCode).
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of the Entire Issued Share Capital of Ee Limited (Deutsche Telekom Ag), Agreement for the Sale and Purchase of Shares (Bt Group PLC)
Standstill. During the term of his employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) other than in his capacity as an officer or director of the Company, seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving holder of voting securities of the Company Company; or
(iii) be employed by any person (other than NorthStar) that, directly or (iithrough its affiliates, engages in any of the foregoing. Notwithstanding anything in this Section 7(d) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Companycontrary, in each case without the prior written consent of the Board no action described above taken by NorthStar (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, whether directly or indirectly, formvoluntarily or involuntarily) shall be considered to be a violation of this Section 7(d) by Executive. Exercise of options, join or in any way participate in a “partnershipconversion of LTIP Units, limited partnership, syndicate, vesting and delivery of shares of Common Stock pursuant to equity or other group” awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in connection with or as such terms are used in the rules a result of the SEC Executive’s employment with respect to the Company or any securities service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Company;
(i) request or propose Executive, the Executive will no longer be subject to the Board or the Company (or any limitations of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesSections 7(d), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 12 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. During For a period commencing on the period (such period, date hereof and ending on the “Standstill Term”) commencing as of the First Closing Date and continuing until the later earlier of (i) thirty-six (36) months following the second (2nd) anniversary effective date of the Second Closing Date, Merger and (ii) the date on upon which the Investor ceases to have Shareholder no longer has the right to designate a nominate at least one (1) director to the Board Company’s board of directors (the “Board”) pursuant to Section 5the Governance Agreement, and (iii) the date on which Shareholder shall not, without the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the Company, directly or indirectly:
a. acquire, offer to acquire, or agree to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (“Exchange Act”)), by purchase or otherwise, any additional shares of Common Stock, or any rights or options to acquire any such securities or any securities convertible into such securities; provided that, in the event that at any time, whether due to an increase in the total outstanding shares of Common Stock, a sale of shares of Common Stock then issued and outstandingby the Shareholder or otherwise (made in compliance with the provisions of the lock-up agreement dated as of the date hereof with the Shareholder, as same may be amended from time to time (the “Lock-Up Agreement”), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesShareholder beneficially owns, directly or indirectly, Common Stock representing less than the Shareholder Maximum Ownership Percentage, the Shareholder may acquire beneficial ownership additional shares of Common Stock and/or Common Stock Equivalents and/or or rights or options to acquire any instrument such securities or any securities convertible into such securities; provided, further, that gives the Investor Shareholder’s ownership percentage will not exceed the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsShareholder Maximum Ownership Percentage;
(b) make a tender, exchange b. call or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called call any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company;
c. submit, or participate with others that submit, any stockholder proposals for the vote or consent (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeecollectively, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offerorvote”) for securities of the Company stockholders (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred whether pursuant to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 14a-8 under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(fotherwise) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving proposal for consideration by the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Board;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) aboved. solicit “proxies” or make, or, directly or indirectly, form, join or in any way participate in a or encourage any “partnership, limited partnership, syndicate, or other groupsolicitation” (as such terms are used in the proxy rules of the SEC with respect to Securities Exchange Commission) for proxies for any stockholder proposals of the Company or any securities nominations of candidates for election as directors or trustees of the Company;
e. form or join in a partnership, syndicate or other group, including, without limitations, a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Shareholder Shares, or deposit any Shareholder Shares in a voting trust, arrangement or agreement, except for such actions that may be permitted under the Lock-Up Agreement;
f. explicitly or implicitly, publicly or privately: (i) request encourage, recommend, advise, finance or propose urge others to the Board or put forward stockholder proposals of the Company (or any nominations with respect to directors/trustees of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or enter into any arrangements with any other person in connection with any of the matters set forth in clauses foregoing as they relate to the Company; (aii) through (i) above; or
(k) enter into discussions, negotiations, arrangements indicate support or agreements with approval for any Person stockholder proposals or nominations relating to the foregoing actions referred to in (a) through (i) above; provided, however, Company that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to are not otherwise approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofArticles; (iii) solicit or encourage others to vote against any matter recommended by the Board in accordance with the Articles; or (iv) act alone or in concert with others to seek control of, or otherwise effect a change to, the management or policies of the Company, unless otherwise approved by the Board in accordance with the Articles; or
g. take or seek to take, or cause or seek to cause or solicit others to take any action inconsistent with any of the foregoing as they relate to the Company. Notwithstanding the foregoing, this Agreement will not be construed to preclude, prohibit, restrict or otherwise require the Shareholder to take any actions that are permitted or contemplated by the Governance Agreement or the Company’s Articles.
Appears in 2 contracts
Sources: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp), Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)
Standstill. During Except with the period (such period, the “Standstill Term”) commencing as prior written consent of the First Closing Date and continuing until Company, at all times during the later of Standstill Period (i) the second (2nd) anniversary of the Second Closing Dateas defined below in Section 21), (ii) the date on which the each Investor ceases to have the right to designate a director to the Board pursuant to Section 5agrees, severally, but not jointly, not to, directly or indirectly, and will cause each of its respective Affiliates (iiias defined in Section 21) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingnot to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) 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 assist, facilitate or encourage any other than Permitted Purchases and purchases individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of Preemptive Right Sharesany kind or structure (collectively, directly a "Person") to effect or indirectlyseek, acquire beneficial ownership offer or propose (whether publicly or otherwise) to effect or participate in, any "solicitation" of Common Stock and/or Common Stock Equivalents and/or "proxies" (as such terms are used in the proxy rules of SEC) to vote any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Voting Securities of the Company (a “Derivative”)or consent to any action from any holder of any Voting Securities of the Company or conduct or suggest any binding or nonbinding referendum or resolution or seek to advise, except, nothing in this Section 2.1(a) shall prevent encourage or prohibit the Investor from investing in a fund influence any Person with respect to which the Investor does not have voting of or share decision-making authority over investment or divestment decisionsthe granting of any consent with respect to any Voting Securities of the Company;
(b) make a tenderpropose or nominate, exchange or other public offer cause or encourage any Person to acquire Common Stock and/or Common Stock Equivalentspropose or nominate, any candidates to stand for election to the Board, or seek the removal of any member of the Board;
(c) directly form, join or indirectlyotherwise participate in any "partnership, limited partnership, syndicate or other group" (iother than any group among some or all of the Affiliates of the Investors) 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, or grant any proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or otherwise act in concert with any Person with respect to the Common Stock (other than Affiliates of the Investors);
(d) seek to have called any call, or to request the call of, or call a special meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate make a request for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control list of the Company, such offer 's stockholders or proposal is referred to as an “Acquisition Proposal”)other Company records;
(e) directly otherwise act, alone or indirectlyin concert with others, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), to control or seek to advise control, to seek representation on, or to influence any Personor seek to influence, with respect to voting of any securities whether through litigation or otherwise, the management, the Board or the policies of the Company; provided, however, that nothing herein shall prohibit the Investors from complying with legal or regulatory requirements, including, without limitation, the filing of any report or schedule required to be filed with the SEC, and provided, further that each of the Investors and their Affiliates, may privately communicate their views to the management or the Board;
(f) deposit effect, seek to effect or in any way assist or facilitate any other Person in effecting or seeking to effect any: (i) tender offer or exchange offer to acquire securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting Company; (ii) acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) interest in any merger, consolidation, material asset or business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries; (iii) merger, acquisition, share exchange or any similar transaction other business combination involving the Company or any of its subsidiaries; or (iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyCompany or any of its subsidiaries or material portion of its or their businesses;
(g) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through any swap or hedging transaction or otherwise, any security of the Company or any right decoupled from such underlying security held by either Investor to any Person that would knowingly result in such Person, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 10% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Person who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 10% or more of the shares of the Common Stock outstanding at such time, except in each case without the prior written consent of the Board (in a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)approved by the Board;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to request that the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly Representatives amend or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above3; or
(ki) enter into discussionsotherwise take, negotiationsor solicit, arrangements cause or agreements encourage others to take, any action inconsistent with any Person relating of the foregoing. Notwithstanding anything to the foregoing actions referred to in (a) through (i) above; providedcontrary, however, that nothing contained in this Section 2.1 Agreement shall preventprohibit or restrict any director of the Company, restrictincluding any New Nominee, encumber, from exercising his or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its her rights and fiduciary duties as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Director Nomination Agreement (Springowl Associates LLC), Director Nomination Agreement (Forestar Group Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date Period and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to unless otherwise approved by the Board pursuant to Section 5, and of Directors (iii) the date on which the excluding any Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingDesignees), the Investor (including SK ecoplant will not, and the SPV) and will cause each of its Subsidiaries shall Affiliates, directors, officers or employees not do any of the followingto, except as approveddirectly or indirectly, invited or waived by the Company or the Board, acting alone or as contemplated by this Agreementpart of a 13D Group:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire or agree, directly or indirectlyoffer, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)propose, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationwhether by purchase, tender or exchange offer, purchase by joining any 13D Group or otherwise, to acquire ownership of any, (x) of the businesses or material assets of the Company or any Significant Subsidiary (except for any transaction in the ordinary course of business), (y) any Equity Securities or any equity securities of any Significant Subsidiary, or (z) rights or options to acquire such ownership other than (i) the delivery of the Shares pursuant to the Stock Purchase Agreement, (ii) the acquisition of the Company’s assets securities as a result of any stock splits, stock dividends or businessesother distributions or recapitalizations or offerings made available by the Company to holders of Common Stock, purchase including rights offerings, (iii) any acquisition of the Company’s securities approved by the Board of Directors (excluding any Investor Designees), or (iv) any acquisition of the Company’s securities pursuant to a Permitted Transfer (each event listed in clauses (i) through (iv), a “Permitted Acquisition”);
(b) engage in any “solicitation” (within the meaning of the Exchange Act) of proxies or consents relating to the election of directors with respect to the Company, or become a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than the Investor Designees, or call, or seek or propose to call, any meeting of the Company’s shareholders in connection therewith;
(c) in any manner, agree, attempt, seek or propose to deposit any securities of the Company or any Derivativerights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Equity Securities of the Company in any voting trust or similar arrangement;
(d) form or join in the formation of a 13D Group (other than a 13D Group consisting only of the Investor and its Affiliates) with respect to any Equity Securities or equity securities of any Significant Subsidiary, or grant to any similar transaction involving the Company or (ii) Person any recapitalization, restructuring, liquidation or other extraordinary transaction proxy with respect to the Company, in each case without the prior written consent exercise of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC voting rights with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveShares; or
(ke) enter into discussionspublicly announce any intention, negotiations, arrangements plan or agreements arrangement or finance (or arrange financing for) any Person in connection with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Investor Rights Agreement (Western Digital Corp), Investor Rights Agreement (Hitachi LTD)
Standstill. During Investor hereby agrees that, without the period (such period, the “Standstill Term”) commencing as prior approval of the First Closing Date and continuing until Board (as defined in the later of (i) the second (2nd) anniversary of the Second Closing DatePurchase Agreement), (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do and shall not permit or cause any Affiliate (as defined in the Purchase Agreement) or Representative of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementInvestor to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacting alone or with others, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase, merger, business combination or in any other manner, any voting securities or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company if after such acquisition Investor, together with its Affiliates, would own more than 10% of the outstanding capital stock of the Company or voting power of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person; provided that any investment by Investor or an Affiliate of Investor in third-party mutual funds or other similar passive investment vehicles that hold interests in securities of the Company or any of its Affiliates shall not be taken into account for the purpose of this subparagraph (a “Derivative”a), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tenderenter into any voting agreements, exchange trusts or similar arrangements with respect to voting securities of the Company other public offer to acquire Common Stock and/or Common Stock Equivalentsthan as set forth herein;
(c) make, or in any way participate, directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the rules promulgated by the Securities and Exchange ActCommission (the “Commission”)), or seek to advise or influence any Person, person or entity with respect to the voting by any third party of any voting securities of the Company;
(fd) deposit make any securities of the Company in a voting trust public announcement, directly or subject any securities of the Company to any arrangement or agreement indirectly, with respect to the voting to, or submit a proposal for, or offer of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) (a “13D Group”) of the SEC Securities Exchange Act of 1934, as amended (the “Exchange Act”) , in connection with respect any of the foregoing;
(f) act, alone or in concert with others, to seek to control, advise, change or influence the Company management, Board, governing instruments, policies or any securities affairs of the Company;
(ig) request disclose any intention, plan or propose to arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))foregoing;
(jh) make have any public announcement regardingdiscussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ih) above; or
(kj) enter into discussions, negotiations, arrangements or agreements with any Person relating to request the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates from making confidentialagents or Representatives, nonpublic proposals directly or indirectly, in any public manner, to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member amend or waive any of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing provisions.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement, Common Stock Purchase Agreement (Denali Therapeutics Inc.)
Standstill. (a) During the period (such periodStandstill Period, unless otherwise approved by the “Standstill Term”) commencing as of the First Closing Date Board or by ClearSign, each Investor Party shall not, and continuing until the later of shall cause its Representatives not to, directly or indirectly:
(i) acquire, offer or seek to acquire, agree to acquire or acquire rights or options to acquire, whether by purchase, tender or exchange offer, through the second acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, (2ndA) anniversary any securities of ClearSign, any rights decoupled from the underlying securities of ClearSign, or any derivative securities, contracts or instruments in any way related to the price of shares of Common Stock, in each case, if such acquisition, offer or seeking to acquire, agreement or transaction would result in any Investor Party having beneficial ownership of more than 3.5% of the Second Closing DateCommon Stock or Voting Securities outstanding at such time, including, without limitation, through the exercise of, or acquisition of, derivative securities or (B) any assets or liabilities of ClearSign;
(ii) the date on which the Investor ceases 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 have the right a material amount of assets or securities of ClearSign or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to designate ClearSign or any of its subsidiaries or (C) any form of tender or exchange offer for Voting Securities, whether or not such transaction involves a director to the Board pursuant to Section 5, and Change of Control;
(iii) in respect of those matters enumerated in Section 3 hereof, other than as may be required by reason of employment in a broker-dealer in the date on which ordinary course, engage in, or assist in the engagement in (including, without limitation, engagement by use of or in coordination with a universal proxy card), any solicitation of proxies or written consents to vote any Voting Securities, communicate with stockholders of ClearSign pursuant to Rule 14a-1(l)(2)(iv) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), 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 ClearSign (including, without limitation, by initiating, encouraging or participating in any “withhold” or similar campaign);
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any Voting Securities or any rights decoupled from the underlying securities held by any Investor Party to any person who is not (including SK ecoplant and SPVA) and a Party to this Agreement, (B) a member of the Board, (C) an officer of ClearSign or (D) an Affiliate or Associate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) with a known history of activism or known plans to engage in activism or that would knowingly (after due inquiry) result in such Third Party, collectively with its Subsidiaries beneficially own less than five percent (5.0%) 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 then issued and outstandingoutstanding at such time;
(v) take any public action in support of or make any public proposal or request that constitutes or would result in: (A) advising, controlling, changing, replacing or influencing any director or member of management of ClearSign, including, without limitation, any plans or proposals, and/or consenting to the Investor (including SK ecoplant and calling of any special meeting of stockholders to effect such plans or proposals, to change the SPV) and its Subsidiaries shall not do number or term of directors or to fill any of vacancies on the followingBoard, except as approvedset forth in this Agreement, invited (B) any material change in the capitalization, stock repurchase programs and practices or waived by dividend policy of ClearSign, (C) any other material change in ClearSign’s management, business or corporate structure, (D) seeking to have ClearSign waive or make amendments or modifications to the Company Certificate of Incorporation, the Bylaws or the BoardPolicy Regarding Stockholder Candidates for Nomination (collectively, the “Governing Materials”) or any other actions that may impede or facilitate the acquisition of control of ClearSign by any person, (E) causing a class of securities of ClearSign to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of ClearSign to become eligible for termination of registration pursuant to Section 12(g)(4) of the 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 ClearSign’s stockholders, management or the Board with respect to ClearSign’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions or strategy or to obtain representation of the Board or seek the removal of any director in any manner, except as contemplated expressly permitted by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bvii) make 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 tendermeeting is permitted by the Governing Materials, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsincluding, without limitation, a “town hall meeting”;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(fviii) deposit any securities of the Company Voting Securities in a any voting trust or subject any securities of the Company Voting Securities to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy Voting Securities (other than pursuant to (A) any such voting trust, arrangement or agreement solely between the Investor Parties that is otherwise in accordance with this AgreementAgreement or (B) customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(gix) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeseek, or knowingly encourage or advise any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) removal of directors with respect to ClearSign or seek, or knowingly encourage or take any recapitalization, restructuring, liquidation or other extraordinary transaction action with respect to the Company, in each case without the prior written consent election or removal of the Board (a transaction described in clauses (i) and (ii) that would result in a Change any directors of Control, is referred to as a “Business Combination”)ClearSign;
(hx) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any other way participate in a any “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveVoting Securities; provided, however, that nothing herein shall limit the ability of an Affiliate of any Investor Party to join in a “group” with any other Investor Party or Affiliate thereof comprising such Investor Party following the execution of this Agreement, so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that such Investor Party has formed a group with such Affiliate;
(xi) demand a copy of ClearSign’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 the State of Delaware providing for stockholder access to books and records (including, without limitation, lists of stockholders) of ClearSign;
(xii) make any request or submit any proposal to amend or waive the terms of this Section 6 other than through non-public communications with ClearSign that would not be reasonably likely to trigger public disclosure obligations for any Party;
(xiii) comment publicly about or disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to any transactions involving ClearSign, any director or member of management, policies, strategy, operations, financial results or affairs, any of its securities or assets, or this Agreement that is inconsistent with the provisions of this Agreement; or
(xiv) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action that the Investor Parties are prohibited from taking pursuant to this Section 6, or advise, assist, 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.
(b) Notwithstanding anything to the contrary contained in this Section 2.1 6, each Investor Party shall prevent, restrict, encumber, not be prohibited or limit in any mannerrestricted from: (A) communicating privately with members of the Investor Board or senior officers of ClearSign regarding any matter in a manner consistent with communications that may be reasonably made by all stockholders of ClearSign, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Party or their respective Affiliates or any Third Party, subject in any case to any confidentiality obligations to ClearSign of its Affiliates from making confidentialany such director or officer and applicable law, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationrules or regulations; (B) the taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over such Investor Designee from performing Party; (C) generally fulfilling its duties obligations to its clients in its role as a member broker-dealer or an employee of a broker-dealer, provided, that a breach by any Investor Party of this Agreement is not the cause of the Boardapplicable requirement; or (CD) privately communicating with stockholders of ClearSign and others in a manner that does not otherwise violate this Agreement or applicable law, so long as such actions do not create a public disclosure obligation for such Investor Party or ClearSign and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with such Investor Party’s normal practices in the circumstances. The provisions of this Section 6 shall not limit in any respect the actions of any director of ClearSign in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to ClearSign and its stockholders and the Company Policies (it being understood and agreed that the Investor Parties shall not take any actions to indirectly violate any provision of this Section 6). The provisions of this Section 6 shall also not prevent the Investor Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 3 hereof).
(c) During the Standstill Period, each Investor Party shall refrain from taking any actions which could have the effect of encouraging, influencing or assisting any of its Affiliates from exercising their respective rightsThird Party to engage in actions which, performing their respective obligations or otherwise consummating the transactions contemplated if taken by any Investor Party, would violate this Agreement, except as may be required by reason of employment in a broker-dealer in the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofordinary course.
Appears in 2 contracts
Sources: Cooperation Agreement (ClearSign Technologies Corp), Cooperation Agreement (ClearSign Technologies Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership in excess of 15% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this excluding the acquisition of equity-based compensation pursuant to Section 2.1(a) shall prevent 13 hereof and the exercise of any options or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decisionconversion of any convertible securities comprising such equity-making authority over investment or divestment decisionsbased compensation;
(b) make a tender, exchange 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 public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companybusiness for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved or oppose the directors nominated by a majority of the Board (excluding the Investor Designeeprovided, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities that such nominees were not nominated in contravention of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or ▇▇▇▇▇▇ or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 in 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 any stockholder meeting;
(e) call or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek 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 cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇ to vote in favor of a Sale Transaction that was approved by the Board;
(g) 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 provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, ▇▇▇▇▇▇ or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to 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;
(i) request or propose to the Board or the Company (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 officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make enter into any public announcement regardingarrangements, understandings or agreements (whether written or oral) with, or take advise, finance, assist or encourage any action other person that could require the Company engages, or offers or proposes to make a public announcement regardingengage, a potential Business Combination or in any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(k) enter into discussions, negotiations, arrangements take or agreements cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit ▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Fuel Systems Solutions, Inc.), Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership in excess of 12% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange 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 public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companybusiness for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved or oppose the directors nominated by a majority of the Board (excluding the Investor Designeeprovided, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities that such nominees were not nominated in contravention of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the Shareholder Group or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, 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” in support of all of the nominees of the Board at any securities stockholder meeting;
(e) call or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(if) request publicly disclose, or propose to cause or facilitate the Board public disclosure (including, without limitation, the filing of any document or report with the Company (SEC or any other governmental agency or any disclosure to any journalist, member of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly the media or indirectlysecurities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or waiver this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Section 2.1 Agreement;
(including g) disparage the Company or any member of the Board or management of the Company, provided that this clause provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation or are subject to contractual provisions providing for confidential disclosure;
(h) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, 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 Company’s securities;
(i));) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Telecommunication Systems Inc /Fa/)
Standstill. During From and after the period date of this Agreement, unless an exemption or waiver is otherwise approved in advance in writing by the Board, Shareholder shall not, and shall cause its Affiliates not to and its and their Representatives acting on their behalf not to, until the Standstill Fall-Away Date, directly or indirectly:
(a) engage in any “solicitation” of “proxies” (as such periodterms are defined under Regulation 14A under the Exchange Act) or consents to vote (or withhold the vote of) any Shares, or conduct any binding or nonbinding referendum with respect to any Shares, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or consents) with respect to any Shares, or otherwise become a “participant” in a “solicitation” (as such term is defined under Regulation 14A under the “Standstill Term”Exchange Act) commencing as to vote (or withhold the vote of) any Shares or other Capital Stock of the First Closing Date Company; provided that the foregoing will not be deemed to restrict or limit in any manner in which Shareholder or its Affiliates votes any of its Shares or Capital Stock, directly or by proxy, subject to compliance with the other terms and continuing until the later conditions of this Agreement;
(ib) the second (2nd) anniversary of the Second Closing Date, (ii) the date other than through participation on which the Investor ceases to have the right to designate a director to the Board pursuant (or applicable committee) or any statements of opinion relating to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall corporate governance strategy that are not do any of the following, except as approved, invited or waived by specifically targeted at the Company or the Board, make any public statement with the effect of: (i) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the voting standard with respect to director elections, the number of directors or the removal of any directors (other than Shareholder Nominees), or to fill any vacancies on the Board (other than Shareholder Nominees), except as contemplated by in this Agreement:
, (aii) causing any change in the capitalization, share repurchase programs and practices or dividend policy of the Company, (iii) causing any other than Permitted Purchases and purchases change in the Company’s management, business or corporate structure, (iv) seeking to have the Company waive or make amendments or modifications to the Articles of Preemptive Right Shares, directly Association or indirectly, acquire beneficial ownership policies of Common Stock and/or Common Stock Equivalents and/or the Company (each as may be amended from time to time) or other actions that may impede or facilitate the acquisition of control of the Company by any instrument that gives the Investor the economic equivalent of ownership of an amount person; (v) causing a class of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companydelisted from, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeecease to be authorized to be quoted on, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities exchange; or (vi) causing a class of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting become eligible for termination of such securities, including the granting of any proxy (other than registration pursuant to this Agreement);
(gSection 12(g)(4) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Exchange Act;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Standstill. During the period (such period, the “Standstill Term”a) commencing Except as otherwise expressly provided in this Agreement or as specifically approved in writing by 66-2/3% of the First Closing Date and continuing until the later members of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by for a period of three (3) years from the date of this Agreement:
(a) other than Permitted Purchases and purchases , neither London Bridge, nor any of Preemptive Right Sharesits Affiliates or Associates, nor any Group which London Bridge Controls shall, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;:
(bi) make a tenderby purchase or otherwise, exchange acquire, agree to acquire or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the CompanyBeneficial Ownership of, or any Liens with respect to, any Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities (ii) propose or nominate for election to the Board including any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if anyvoting trust certificates representing such securities);
(dii) directly or indirectlyenter into, encouragepropose to enter into, accept solicit or support a tenderany Buyout Transaction or Third Party Offer, exchange or other offer purchase, acquire or proposal by propose to purchase, acquire, solicit or support the purchase or acquisition of any other Person or group (an “Offeror”) for securities portion of the Company (if such offer business or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, of its Subsidiaries by London Bridge or by any similar transaction involving the Company of its Affiliates or (ii) Associates or by any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Person;
(hiii) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipGroup (other than a Group that may be formed in the future consisting solely of London Bridge and its Affiliates) formed for the purpose of acquiring, limited partnershipholding, syndicatevoting or disposing of or taking any other action with respect to Voting Securities other than the Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than the Company with respect to any Voting Securities, or other group” become a "participant" in an "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A under the rules Exchange Act) relating to the Board, or otherwise attempt to acquire or alter Control of the SEC with respect to the Company business or any securities affairs of the Company;
(iv) request deposit any Voting Securities in a voting trust or propose enter into any voting agreement or arrangement with respect thereto (other than this Agreement) which would entitle any Person to Control more than 10% of the Board or Total Voting Power of the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Company;
(jvi) make publicly propose to do or permit any public announcement regardingof the foregoing, publicly propose to revise any of the standstill provisions of this Agreement, or otherwise take any action that could require challenging the Company to make a public announcement regarding, a potential Business Combination validity or any enforceability of the matters set forth in clauses (a) through (i) aboveforegoing or which would be inconsistent with the foregoing; or
(kvii) enter into discussionsassist, negotiationsadvise, arrangements encourage, provide funds for, negotiate or agreements otherwise participate with or support any Person relating with respect to, or otherwise seek to do, any of the foregoing actions referred to or, except as set forth in Section 2.3 below, participate, assist, advise, encourage, provide funds for or otherwise support any Third Party Offer.
(ab) through Nothing in this Agreement shall (i) aboveprohibit or restrict London Bridge from responding to any inquiries from any Other Holders as to London Bridge's intention with respect to the voting of any Voting Securities Beneficially Owned by it so long as such response is consistent with the terms of this Agreement; provided, however, that nothing contained (ii) prohibit London Bridge from Beneficially Owning Voting Securities issued as dividends or distributions in this Section 2.1 shall prevent, restrict, encumberrespect of, or limit in issued upon conversion, exchange or exercise of, securities which London Bridge is permitted to Beneficially Own under this Agreement; (iii) prohibit any manner: (A) the Investor employee or agent of London Bridge from purchasing or otherwise acquiring Voting Securities so long as he or she is not a member of a Group that includes London Bridge or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member or Associates or is not otherwise acting on behalf of the Board; or (C) the Investor London Bridge or any of its Affiliates or Associates; or (iv) prohibit London Bridge from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, disclosing in accordance with its obligations (if any) under the terms hereof and thereoffederal securities laws or other applicable law (if any) that the Company has become the subject of a Buyout Transaction or a Third Party Offer.
Appears in 2 contracts
Sources: Governance Agreement (London Bridge Software Holdings PLC), Governance Agreement (Phoenix International LTD Inc)
Standstill. During (a) ▇▇▇▇ agrees that from the period (such period, the “Standstill Term”) commencing as date of the First Closing Date and continuing this Agreement until the later of (i) the second (2nd) first anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have KLIM no longer has the right to designate nominate a director KLIM Designee to the Board of Directors pursuant to Section 55.1, and (iii) without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of a majority of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any disinterested members of the followingBoard of Directors, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesKLIM shall not, directly or indirectly, acquire beneficial ownership and shall cause its Affiliates (including any Purchaser) not to, directly or indirectly:
(i) acquire, agree to acquire, or offer to acquire, by purchase or otherwise, any additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders securities of the Company, other than Conversion Shares issuable or issued upon conversion of the Notes in accordance with the terms thereof;
(ii) propose make, engage in, or nominate for election to the Board in any person whose nomination has not been approved by a majority way, participate in any “solicitation” of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under 14 of the Exchange Act)) to vote, or seek to advise or influence any Person, Person with respect to the voting of, any equity interests of the Company in favor of the election of any securities person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee) or in opposition of any individual nominated or designated for appointment or election to the CompanyBoard of Directors by the Company (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation);
(fiii) nominate any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee);
(iv) deposit any equity securities of the Company in a voting trust or similar contract or agreement or subject any equity securities to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any equity securities (in each case, other than to the Company or a Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the Company by or on behalf of the Company);
(v) make any public announcement with respect to, enter, agree to enter, propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its Subsidiaries, or purchase of a material portion of the assets, properties or equity securities of the Company, other than acquisitions of Conversion Shares pursuant to the Transaction Documents in accordance with the terms thereof;
(vi) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act), or knowingly advise, assist or encourage, or enter into any agreement with, any other Person, in connection with any action prohibited by this Section 4.3(a);
(vii) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements, or arrangements with any other Persons in connection with the matters prohibited by Section 4.3(a);
(viii) make public disclosure inconsistent with the requirements of this Section 4.3(a), or take any action that would reasonably be expected to require the Company to make any arrangement or agreement public disclosure with respect to the voting of such securities, including the granting of any proxy (other than pursuant to matters set forth in this AgreementSection 4.3(a);; or
(gix) propose publicly disclose any intention, plan, or proposal with respect to any of the foregoing.
(b) Notwithstanding Section 4.3(a), the foregoing provisions of Section 4.3(a): (i) shall not restrict KLIM’s ability to make a confidential proposal to the Board of Directors that is not required to be publicly disclosed under applicable law, (ii) shall not, and are not intended to restrict in any manner how KLIM or its Affiliates votes their Conversion Shares or exercises any rights under this Agreement or any other Transaction Document, and (ii) shall not, and are not intended to restrict in any manner KLIM or its Affiliates (A) from purchasing, holding or trading any Notes, (B) in their respective capacity as a lender of the Company or any of its Affiliates (including exercising, protecting, preserving or enforcing any rights, interests or remedies and/or taking any other actions, in each case in such capacity), or (C) from making any public announcement or statement (each, a “Response”) in response to any public announcement, proposal, offer or solicitation made by any other Person, provided, that at least five (5) Business Days prior to making any such Response, KLIM or its Affiliates shall provide the Company with prior written notice of KLIM’s or its Affiliate’s intention to make the Response and a draft of such Response, and the Company shall have a reasonable opportunity to provide comments to the draft Response, which comments shall be considered by KLIM or its Affiliate (as applicable) in good faith if timely provided.
(c) Notwithstanding Section 4.3(a), the restrictions set forth in this Section 4.3 shall terminate and be of no further force and effect if: (i) the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving more than fifty percent (50%) of any class of the Company’s equity securities, or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, purchase recapitalization, restructuring, sale, equity issuance, or otherwise), (ii) any Person or group publicly announces or commences a tender or exchange offer to acquire more than fifty percent (50%) of any class of the Company’s assets or businessesequity securities, purchase (iii) a change of any securities a majority of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent membership of the Board of Directors (excluding any change approved by a transaction described in clauses (i) and (ii) that would result in a Change majority of Control, is referred the directors serving on Board of Directors prior to as a “Business Combination”such change);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (iv) any Event of Default under the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors Notes has occurred and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofis continuing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Douglas Elliman Inc.), Securities Purchase Agreement
Standstill. During Each ADAR1 Party agrees that during the period commencing on the Effective Date and ending immediately following the final certification of the voting results for the 2028 Annual Meeting of Stockholders of the Company (such period, the “Standstill TermPeriod”) commencing as ), neither it nor any of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner, acting alone or in concert with others, take any of the following actions without the prior written consent (email being sufficient) of the Company or its Board of Directors (as defined below):
(a) acquire, offer or propose to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of capital stock of the Company generally on a pro rata basis), directly or indirectly, by purchase, tender or 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”), through swap or hedging transactions or otherwise, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities capital stock of the Company (a “Derivative”)or any voting rights decoupled from the underlying voting securities that would result in the ADAR1 Parties and their Affiliates owning, exceptcontrolling or otherwise having any beneficial or other ownership interest of, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate, more than 4.9% of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock outstanding at such time;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
than in accordance with the recommendations of the Company’s Board of Directors (c) directly or indirectlythe “Board of Directors”), (i) seek make, submit, initiate, encourage or participate in (or provide notice of, or publicly disclose, an intention to have called do any meeting of the stockholders of the Company or propose foregoing) any matter to be voted upon by the stockholders of the Companyproposal with respect to, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeengage, if any);
(d) directly or indirectly, encouragein any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose consent revocations or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) with respect to: (A) any change in the composition, number or term of directors serving on the Board of Directors, the filling of any vacancies on the Board of Directors, the nomination or recommendation for nomination of a person for election at any Stockholder Meeting (as defined in Section 5.14) at which the Company’s directors are to be elected, or seek any election contest or removal contest with respect to advise the Company’s directors, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, (D) 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, (E) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, (F) any stockholder proposal pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or bringing any other business at or before any Stockholder Meeting, or (G) any “withhold” or similar campaign with respect to any proposal for consideration or business brought at or before any Stockholder Meeting;
(c) recommend, request, induce, encourage or influence any Person, other person with respect to (i) pursuing any change in, or attempting to influence, the Company’s management, governance, business, operations, strategy, corporate structure, affairs 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 of Directors’ recommendation in connection with such matter), provided that nothing shall limit the giving by the ADAR1 Parties or their Affiliates of a proxy or consent in respect of any matter so long as the voting of any securities the shares of capital stock of the Company owned thereby are voted in accordance with the terms of this Agreement where applicable;
(d) call, or request the calling of, a special meeting of the Company’s stockholders, or any other Stockholder Meeting (or the setting of a record date therefor), including any “town hall” meeting;
(e) 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;
(f) deposit institute, solicit, assist or join any securities 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 (x) enforce the provisions of this Agreement or the Confidentiality Agreement (as defined in Section 4.5(e) or (y) any counterclaims with respect to any proceeding initiated by or on behalf of the Company in a voting trust or subject any securities violation of this Agreement (and the Company agrees that this Section 4.2(f) (including the exceptions thereto) shall apply mutatis mutandis during the Standstill Period to any arrangement or agreement the Company and its directors, officers, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this AgreementADAR1 Parties);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in, maintain or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other ‘group’” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the capital stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement or Affiliates thereof);
(h) deposit any shares of capital stock of the Company in a voting trust or similar arrangement or subject any shares of capital stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the ADAR1 Parties or their respective Affiliates and otherwise in accordance with this Agreement;
(i) acquire or agree to acquire, offer, seek or propose to acquire, or cause to be acquired or in any way assist or facilitate any other person to acquire or agree to acquire, offer, seek or propose to acquire, ownership (including beneficial ownership) of any of the assets 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;
(j) other than at the express written request of the Board of Directors, 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, tender or exchange offer, purchase, sale, license or other transfer of assets or securities, any other business combination, dissolution, liquidation, reorganization, spin-off or spin-out, share repurchase or similar transaction involving the Company, its subsidiaries or its business;
(k) sell, assign, or otherwise transfer or dispose of its shares of capital stock of the Company, or any rights decoupled from such shares, beneficially owned by them other than in open market sale transactions and block trade brokered sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any person that, to the ADAR1 Parties’ 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), (i) would result in such person, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s outstanding capital stock at such time or would increase the beneficial ownership interest of any person who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s outstanding capital stock at such time, (ii) is listed on SharkWatch50 or has otherwise directly or indirectly run or publicly disclosed an intention to run a proxy contest or publicly submitted stockholder nominations or proposals with respect to another publicly-traded company within the last five years or (iii) is as of the Effective Date a Schedule 13D filer with respect to the Company;
(l) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive any provision of this Agreement;
(m) 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 in connection with a broad-based market basket or index) that relates to or derives any part of its value from any decline in the market price or value of any securities of the Company, that, in each case, would result in the Seller Affiliates having, in the aggregate, a total short position that exceeds 2.0% of the shares of Common Stock outstanding at such time;
(in) request publicly take any action challenging the validity or propose enforceability of any provision of this Agreement; or
(o) participate in any negotiations, discussions, agreements, arrangements or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities or otherwise take or cause any action inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the ADAR1 Parties from (x) communicating confidentially with the Chair of the Board of Directors or the Chief Executive Officer of the Company (or any other individuals in the Company authorized by such individuals) regarding any matter, so long as such communications are not intended to, and could not reasonably be expected to, require any public disclosure of its officerssuch communications, (y) communicating confidentially with the ADAR1 Parties’ Affiliates and the managing members, principals, partners (other than a partner who is solely a limited partner), directors, Affiliates employeesofficers, attorneysgeneral partners, accountants, financial advisors employees and other professional representatives), directly or indirectly, any amendment or waiver attorneys of any provision such party and of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingits Affiliates, or take (z) tendering shares, receiving payment for shares or otherwise participating in any action transaction that could require is consummated following the Company to make Closing involving a public announcement regarding, a potential Business Combination or any third party approved by the Board of Directors on the same basis as other stockholders of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ADAR1 Capital Management, LLC), Stock Purchase Agreement (Keros Therapeutics, Inc.)
Standstill. During (a) Subject to the terms and conditions of this Section 5.1, for a period of 18 months following the date hereof, neither the Investor nor any of its Affiliates will, without the prior approval of the Company:
(such periodi) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase, merger, take-over bid, business combination or otherwise, individually or acting jointly or in concert with any other Person (as determined in accordance with Section 1.9 of NI 62-104, hereinafter referred to as “Acting Jointly or in Concert”), any voting securities of the Company and/or Convertible Securities (a “Standstill TermShare Transaction”) commencing as if such Share Transaction would result in the Investor and its Affiliates having, directly or indirectly, beneficial ownership of, or control or direction over, more than 19.9% of an outstanding class of voting securities of the First Closing Date and continuing until Company (calculated in accordance with Section 1.8 of NI 62-104);
(ii) directly or indirectly, make, or in any way participate in, any solicitation of proxies to vote, or encourage, seek to advise or influence any other Person (other than an Affiliate of the later Investor) with respect to the voting of any voting securities of the Company (other than in respect of the voting securities of the Company held by the Investor pursuant to subsection (a)(i) of this Section 5.1 or Section 5.1(c));
(iii) otherwise act alone or in concert with others to seek to control the management of the Company or the Board or policies of the Company, other than through any Board Designee that may be elected to the Board;
(iv) enter into any discussions, arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aid, assist or encourage any other Person with respect to the foregoing; or
(v) make any public announcement with respect to the foregoing, except as may be required by applicable law, regulatory authorities or stock exchanges.
(b) The restrictions contained in Section 5.1(a) shall terminate immediately upon the earlier of (each a “Spring Event”):
(i) the second (2nd) anniversary date on which the Company or the Board announces an intention to agree or agrees with a Third Party to a merger, amalgamation, arrangement or similar transaction or the sale, directly or indirectly, of all or substantially all of the Second Closing Dateassets of the Company (collectively, a “Transaction”) which, if such Transaction is successfully completed, will result in shareholders of the Company holding less than 50% of the outstanding voting securities of the resulting corporation or entity;
(ii) the date on which the Investor ceases to have the right to designate Company enters into an agreement with a director to the Board Third Party pursuant to Section 5which the Company has agreed to support and recommend, and or announces its support for or recommendation in favour of, a take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company made by a Third Party (or an Affiliate of such Third Party);
(iii) the date upon which a Third Party makes an unsolicited take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company, or announces an intention to do so;
(iv) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do Company or any of its Affiliates agrees to the followingtransfer, except as approved, invited sale or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesdisposition, directly or indirectly, acquire of all or substantially all of the assets of the Company, on a consolidated basis, or announces an intention to do so; or
(v) the date on which a Third Party (together with any Affiliates) enters into an agreement to acquire, or acquires, (A) direct or indirect beneficial ownership of, (B) the right to exercise control or direction over, or (C) a combination of direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives and the Investor the economic equivalent of ownership of an amount of right to exercise control or direction over securities of the Company (a “Derivative”)Company, exceptwhich together with any securities already directly or indirectly held or controlled by the Third Party and its Affiliates, nothing in this Section 2.1(a) shall prevent or prohibit aggregate would constitute more than 50% of the Investor from investing in a fund with respect voting rights attached to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;outstanding voting securities of the Company.
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained The restrictions in this Section 2.1 5.1 shall prevent, restrict, encumber, or limit in any manner: (A) not prevent the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by acquiring securities of the Company after where such acquisition results from the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor Investor’s or any of its Affiliates from exercising their respective rights, performing their respective obligations Affiliates’ acquisition of the securities of a Person or otherwise consummating company which acquired the transactions contemplated by securities of the Company without the Investor’s solicitation or breach of this Agreement, provided that the Purchase Agreementprimary assets of such Person are not Common Shares, Joint Venture Agreementvoting securities or other securities convertible into Common Shares.
(d) Notwithstanding anything in this Section 5.1, the Investor shall be permitted at any time to make a confidential proposal to the Board regarding any of the transactions or the Preferred Distributor Agreementactivities contemplated in Section 5.1(a), in each case, in accordance to enter into confidential discussions or negotiations with the Board with respect to the terms hereof of any such transactions or activities and thereofto enter into any agreement with the Company providing for or relating to the consummation of any such transactions or activities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Skeena Resources LTD), Option Agreement (Skeena Resources LTD)
Standstill. During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchasers, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Warburg Pincus & Co., and (iii) Warburg Pincus Partners LLC, shall not, without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementits Board of Directors:
(a) other than acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the Exchange Act), by purchase or otherwise, any Voting Stock of the Company or direct or indirect rights to acquire any Voting Stock of the Company, or of any successor to or person in control of the Company, or any assets of the Company or any Subsidiary or division of the Company or of any such successor or controlling person, provided, however, that the Purchasers, Warburg Pincus & Co., and Warburg Pincus Partners LLC may acquire in one or more transactions an aggregate number of shares of Voting Stock equal to the Permitted Purchases and purchases of Preemptive Right SharesAmount.
(b) make, or in any way participate, directly or indirectly, acquire beneficial ownership in any "solicitation" of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect "proxies" to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securities, including any Voting Stock of the granting of any proxy Company (other than pursuant to this Agreementin such Purchaser's Representatives' capacities as a member of the Company's Board of Directors in a manner consist with his or her fiduciary duties);
(gc) propose make any public announcement with respect to, or submit a proposal for or offer of (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of (including to the Company’s assets or businesses's Board of Directors), purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(hd) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used 13D Group in the rules connection with any of the SEC with respect foregoing;
(e) otherwise act or seek to control or influence the Company management or any securities Board of Directors or policies of the Company;
, whether alone or in concert with others (i) request other than in such Purchaser's Representatives' capacities as a member of the Company's Board of Directors in a manner consistent with his or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)her fiduciary duties);
(jf) make any public announcement regarding, or take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ie) above;
(g) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 3.1 in a manner that would require public disclosure; or
(kh) enter into discussionsdirect or instruct any of their respective Subsidiaries, negotiationsRepresentatives or Affiliates to take any such action. Notwithstanding the foregoing, arrangements if, at any time during the Standstill Period,
(i) any person or agreements 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) acquires Beneficial Ownership of Voting Stock of the Company representing 40% or more of the then outstanding Voting Stock of the Company;
(ii) any person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) announces or commences a tender or exchange offer to acquire Voting Stock of the Company which, if successful, would result in such person or 13D Group owning, when combined with any Person relating other Voting Stock of the Company owned by such person or 13D Group, 50% or more of the then outstanding Voting Stock of the Company;
(iii) the Company enters into, or resolves to enter into, any merger, sale or other business combination transaction pursuant to which the outstanding shares of Common Stock would be converted into cash and/or securities and/or property of another person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) or 50% or more of the outstanding shares of Common Stock as of immediately prior to such transaction would be owned by persons other than the then current holders of shares of Common Stock and any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives; then, except as otherwise provided herein, the Standstill Period shall be suspended and tolled during the pendency of any such event with respect to the foregoing actions referred to in Purchasers, their respective Subsidiaries and Representatives and the provisions of subparagraphs (a) through (g) shall not be applicable to the Purchasers, their respective Subsidiaries and Representatives during the pendency of any such event. For the avoidance of doubt, the Standstill Period shall resume and be extended by an amount of time equal to the time during which such event was pending, and the provisions of subparagraphs (a) through (g) shall resume to be applicable to the Purchasers, their respective Subsidiaries and Representatives in the event that the provisions of (i) above; providedthrough (iii) cease to be applicable, howeversuch as, that nothing contained in this Section 2.1 shall preventfor example and without limitation, restrictdisposition of the Voting Stock of the Company to below 40% by the person or 13D Group, encumberwithdrawal of the tender or exchange offer by the person or 13D Group, or limit in any manner: (A) the Investor termination of merger, sale or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofother business combination transaction.
Appears in 2 contracts
Sources: Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Warburg Pincus Private Equity Viii L P)
Standstill. During The Investor agrees that during the period (such periodStandstill Period, without the prior written approval of the Board, the “Standstill Term”Investor will not, directly or indirectly, and will cause its Affiliates not to:
(a) commencing as acquire, offer or seek to acquire, agree to acquire or make a public proposal to acquire, by purchase or otherwise, beneficial ownership of any Company Securities, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the First Closing Date and continuing until the later price of such Company Securities (but in any case other than (i) the second (2nd) anniversary as a result of the Second Closing Dateany stock split, stock dividend or distribution, subdivision, reorganization, reclassification or similar capital transaction involving Company Securities, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) acquisition of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any issuable upon conversion of the followingPreferred Stock, except (iii) pursuant to or in connection with (A) an acquisition of Company Securities from another Investor Party or one of its Affiliates or (B) a Permitted Loan, and (iv) as approved, invited a result of the acquisition by any Investor Director of any Company Securities pursuant to (x) the grant or waived vesting of any equity compensation awards granted by the Company or the Boardto any Investor Director, or as contemplated (y) the exercise of any stock options, restricted stock units, or similar awards relating to any Company Securities granted by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the to any Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsDirector;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a or knowingly encourage any “partnershipsolicitation” of “proxies” (whether or not relating to the election or removal of directors), limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal or action by the Company’s stockholders, or seek election to or to place a representative on the Board (other than pursuant to Section 5.08) or seek the removal of any director from the Board;
(c) propose, offer, seek or indicate an interest in (in each case, with or without conditions) any merger or business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any securities Subsidiary, or any other extraordinary transaction involving the Company or any Subsidiary or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements whether written or oral) with any other Person (other than its Representatives) regarding any of the Companyforegoing;
(id) request otherwise act, alone or propose in concert with others, to seek to control or influence, in any manner, the management, Board or policies of the Company (or any Subsidiary (for the avoidance of its officersdoubt, directorsexcluding any such act in their capacity as a commercial counterparty, Affiliates employeescustomer, attorneys, accountants, financial advisors and other professional representatives), directly supplier or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)the like);
(je) make any public announcement regardingproposal or statement of inquiry or publicly disclose any intention, plan or take arrangement consistent with the foregoing;
(f) advise or knowingly assist or encourage or direct any action that could require the Company Person to make a public announcement regarding, a potential Business Combination or do any of the matters set forth in clauses (a) through (i) above; orforegoing;
(kg) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any of the foregoing
(h) request the Company or any of its Representatives to amend or waive any provision of this Section 5.05, provided that this clause shall not prohibit the Investor Parties from making a confidential request to the foregoing actions referred to Company seeking an amendment or waiver of the provisions of this Section 5.05, which the Company may accept or reject in (a) through its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by the Company; or
(i) abovecontest the validity of this Section 5.05 or make, initiate, take or participate in any Action to amend, waive or terminate any provision of this Section 5.05; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.05 will limit in any manner: (A1) the Investor Parties’ ability to vote, Transfer (subject to Section 5.06), convert (subject to Article VIII of the Certificate of Designations), purchase Proposed Securities (subject to Section 5.17) or any of otherwise exercise rights under, its Affiliates from making confidentialCommon Stock or Preferred Stock, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; or (B2) the ability of any Investor Designee from performing Director to vote or otherwise exercise its fiduciary duties or otherwise act in its capacity as a member of the Board; or (C) provided, further that notwithstanding anything to the contrary in this Section 5.05, the Investor or any of and its Affiliates from exercising their respective rightsmay at any time communicate privately with the Company’s directors, performing their respective obligations officers or otherwise consummating advisors or submit to the transactions contemplated by this AgreementBoard one or more confidential proposals or offers for a transaction (including a transaction that, the Purchase Agreementif consummated, Joint Venture Agreementwould result in a Fundamental Change), or the Preferred Distributor Agreementso long as, in each case, in accordance with such communications and submissions are not intended to, and would not reasonably be expected to, require any public disclosure by the terms hereof and thereofCompany of such communications or submissions, as applicable.
Appears in 2 contracts
Sources: Investment Agreement (Western Digital Corp), Investment Agreement (Western Digital Corp)
Standstill. During The Shareholder hereby agrees that, for a period of one year from the period (such perioddate hereof, without the prior written consent of the Company, the “Standstill Term”) commencing as Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of the First Closing Date and continuing until the later of its Affiliates not to, directly or indirectly:
(i) the second acquire, publicly announce an intention to acquire, offer or propose to acquire, or agree to acquire (2nd) anniversary except, in any case, by way of the Second Closing Date, (ii) the date on which the Investor ceases stock dividends or other distributions or offerings made available to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of any Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesgenerally), 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" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any equity securities of the Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire beneficial ownership additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives in open market or privately-negotiated transactions as long as the Investor the economic equivalent Shareholder and its Affiliates, collectively, shall not, as a result of ownership such purchase or purchases, beneficially own in excess of an amount of securities 25% of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock;
(bii) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, in any "solicitation" (i) seek to have called any meeting as such term is used in the proxy rules of the stockholders Commission as in effect on the date hereof) of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents (whether or propose not relating to the election or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Actremoval of directors), or seek to advise advise, encourage or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such securities, including term is used in the granting proxy rules of any proxy (other than the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to this Agreement)Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(giii) propose seek, propose, or make any public statement (iwhether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivative, of its Affiliates or solicit or encourage any similar transaction involving the Company other Person to make any such public statement or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)proposal;
(hiv) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to any Voting Securities, other than 63 groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or any securities its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the management, Board of Directors or policies of the Company;
(iviii) request seek, alone or propose to in concert with others, representation on the Board or of Directors of the Company or seek the removal of any member of the Board of Directors;
(ix) make any publicly disclosed proposal or enter into any discussion regarding any of its officersthe foregoing;
(x) publicly make any proposal, directorsstatement or inquiry, Affiliates employeesor publicly disclose any intention, attorneysplan or arrangement (whether written or oral) inconsistent with the foregoing, accountantsor publicly make or disclose any request to amend, financial advisors and other professional representatives), directly waive or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a public announcement regarding, a potential Business Combination Certificate of Incorporation or any By-laws of the matters set forth in clauses (a) through (i) aboveCompany; or
(kxi) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance or assist, any other Person in connection with any Person relating to of the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumberforegoing, or limit make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Standstill. During Armistice agrees that until the period Termination Date, it shall not, and shall cause its Affiliates and Associates and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (such periodcollectively, the “Standstill TermArmistice Affiliates”) commencing as of not to, directly or indirectly, without the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases make, engage in or in any way participate in any “solicitation” (as such term is used in the proxy rules of the Securities and purchases Exchange Commission (the “SEC”), but without regard to the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of Preemptive Right Shares1934, directly as amended (the “Exchange Act”)) of proxies, consents or indirectly, acquire beneficial ownership voting authorizations with respect to the election or removal of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities directors of the Company (or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “Derivative”)participant” (as such term is used in the proxy rules of the SEC) or assist any “participant” in any such solicitation of proxies, except, nothing in this Section 2.1(a) shall prevent consents or prohibit voting authorizations from the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsCompany’s stockholders;
(b) make a tenderencourage, exchange influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other public offer authorization to acquire vote any shares of the Company’s common stock, par value $0.001 per share (the “Common Stock and/or Common Stock EquivalentsStock”) (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(c) directly form, join, encourage, influence, advise, act in concert with or indirectly, in any way participate in any “group” (ias defined pursuant to Section 13(d) seek to have called any meeting of the stockholders of the Company Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Armistice Affiliates with respect to Voting Securities now or propose any matter to be voted upon hereafter owned by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)them;
(d) directly make or indirectly, encourage, accept be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”otherwise);
(e) directly make any request for a stockholder list or indirectlyfor any other Company materials, solicit proxies books or consents or propose or seek or become a participant in a solicitation (records under Section 220 of the Delaware General Corporation Law, as such terms are defined in Regulation 14A under the Exchange Act)amended, or seek other statutory or regulatory provisions providing for stockholder access to advise stockholder lists or influence any Person, with respect to voting of any securities of the CompanyCompany books and records;
(f) deposit make any securities statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company in a voting trust Company’s Affiliates, or subject any securities of the Company Company’s past, present or future employees, directors, managers or representatives, or take any action that would reasonably be expected to result in any arrangement such statement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)announcement being publicly made;
(g) propose (i) enter into any mergerdiscussions, consolidationnegotiations, business combination, tender agreements or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert understandings with any Third Party to take any action that Armistice is prohibited from taking pursuant to this Section 3;
(h) make any request or submit any proposal to amend or waive the terms of this Agreement, in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate each case which would reasonably be expected to result in a “partnership, limited partnership, syndicate, public announcement of such request or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;proposal; or
(i) request disclose any intention, plan, commitment or propose arrangement to do any of the foregoing. Notwithstanding anything in this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict Armistice from (i) communicating privately with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with stockholders of the Company and others in clauses a manner that does not otherwise violate this Section 3 or Section 4(b), or (aiii) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained has jurisdiction over Armistice. Nothing in this Section 2.1 3 or elsewhere in this Agreement shall preventbe deemed to, restrict, encumber, or limit in any manner: (A) the Investor , restrict any director’s ability to act consistently with his or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its her fiduciary duties as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Cooperation Agreement (Avalo Therapeutics, Inc.), Cooperation Agreement
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesExcept as otherwise expressly provided in this Agreement (including this Section 3.01, directly Section 2.02 or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Section 3.03) or as specifically approved by a majority of the Company Independent Directors (a “Derivative”so long as such approval was not obtained by Ciba in violation of this Agreement), exceptneither Ciba nor any of Ciba's controlled affiliates shall, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek by purchase or otherwise, acquire, agree to have called acquire or offer to acquire Beneficial Ownership of any meeting Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities (including any voting trust certificates representing such securities), (ii) enter, propose to enter into, solicit or support any merger or business combination or similar transaction involving Hexcel or any of its Subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the stockholders business or assets of Hexcel or any of its Subsidiaries (except (x) for purchases or acquisitions in the ordinary course of business and (y) for proposals to purchase or acquire a nonmaterial portion of the Company assets of Hexcel or any of its Subsidiaries that are not required to be publicly disclosed), (iii) initiate or propose any matter to be voted upon by securityholder proposal without the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority approval of the Board (excluding the Investor Designeegranted in accordance with this Agreement or make, if any);
(d) directly or indirectlyin any way participate in, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities "solicitation" of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation "proxies" (as such terms are defined used in Regulation 14A the proxy rules promulgated by the SEC under the Exchange Act)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of, any Voting Securities or request or take any action to obtain any list of securityholders for such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction purposes with respect to any matter other than those upon which Ciba and the CompanyCiba Entities may vote in their sole discretion under Section 2.07 (or, as to such matters, solicit any Person in each case without a manner that would require the prior written consent filing of a proxy statement under Regulation 14A of the Board Exchange Act), (a transaction described in clauses (iiv) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipgroup (other than a group consisting solely of Ciba and its affiliates) formed for the purpose of acquiring, limited partnershipholding, syndicate, voting or disposing of or taking any other group” as such terms are used in the rules of the SEC action with respect to the Company or any securities Voting Securities that would be required under Section 13(d) of the Company;
Exchange Act to file a Statement on Schedule 13D with respect to such Voting Securities, (iv) request deposit any Voting Securities in a voting trust or propose to enter into any voting agreement or arrangement with respect thereto (other than this Agreement), (vi) seek representation on the Board, the removal of any directors from the Board or a change in the Company size or composition of the Board, (vii) make any request to amend or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 3.01, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including this clause (i));
(jany such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) make any public announcement regarding, or take any action that could would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the Company to make a public announcement regarding, a potential Business Combination validity or any enforceability of the matters set forth in clauses (a) through (i) above; foregoing or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Governance Agreement (Ciba Geigy LTD), Governance Agreement (Ciba Geigy Corp)
Standstill. During (a) For a period of twelve months following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rightsor any person acting jointly or in concert with the Purchaser) to do or seek to do any of the foregoing; or (vi) advise, performing their respective obligations assist, encourage or otherwise consummating act jointly or in concert with any other person in connection with any of the transactions contemplated foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by this AgreementGCIC Ltd., the Purchase Agreementmanager of the Vendor, Joint Venture Agreement(the “Manager”) or any of its affiliates, other than the Vendor, unless such fund or product is managed by XXX, the Preferred Distributor Agreement, in each case, in accordance with lead portfolio manager of the terms hereof and thereofVendor.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.), Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. During the The Receiving Company agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) on the date hereof and terminating on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which that is eighteen months from the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingdate hereof, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither it nor any of the followingits Restricted Affiliates will, except as approved, unless specifically invited or waived in writing by the Company Company, directly or the Boardindirectly, or as contemplated by this Agreementin any manner:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acquire alone or in concert with others, by purchase or otherwise, any direct or indirect beneficial ownership interest in more than two percent (2%) of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, more than two percent (2%) of the economic equivalent of ownership of an amount of voting securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany of its subsidiaries;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to acquire Common Stock and/or Common Stock Equivalentsvote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any of its subsidiaries;
(c) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or any of its subsidiaries;
(d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting material portion of the stockholders assets, tangible or intangible, of the Company or any of its subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any material portion of the assets of the Company or any of its subsidiaries, except for such assets as are then being offered for sale by the Company or any of its subsidiaries, including those offered in the ordinary course of business;
(e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any of its subsidiaries which are prohibited by clauses (a) or (d) of this Section 5, except for such assets as are then being offered for sale by the Company or any of its subsidiaries;
(f) otherwise, alone or in concert with others, propose to the Company or any of its affiliates or any of their respective stockholders any merger, business combination, restructuring or recapitalization with the Company or any of its subsidiaries or seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or any of its subsidiaries or nominate any person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to any of its subsidiaries; provided that the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
foregoing clause (f) deposit shall not be construed to restrict the Receiving Company from taking (or refraining from taking) any securities action in the ordinary course of its commercial relationship with the Company in a voting trust under the Commercial Agreements or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)otherwise;
(g) propose (i) make any mergerrequest or proposal to amend, consolidation, business combination, tender waive or exchange offer, purchase terminate any provision of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);this Section 5; or
(h) act in concert announce an intention to do, or enter into any arrangement or understanding with others to do, any Third Party to take any action in of the actions restricted or prohibited under clauses (a) through (g) aboveof this Section 5; provided that, ornotwithstanding anything to the contrary in clauses (a) through (h) of this Section 5, if (1) a third party or group (A) publicly announces its intention to commence or commences a tender or exchange offer for at least 20% of the outstanding capital stock of the Company or (B) otherwise acquires at least 15% of the outstanding capital stock of the Company, (2) a third party publicly announces or commences a proxy contest with respect to the election of any directors of the Company in support of the third party’s proposal or offer relating to the foregoing, or (3) the Company enters into an acquisition or business combination (or an agreement related thereto) in which (A) the security holders of the Company would not own a majority of the surviving entity, (B) the Company is selling all or substantially all of the Company’s assets or (C) any person or group of persons would acquire, directly or indirectly, form, join (I) beneficial ownership of (x) 50% or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities more of the Company;
’s outstanding capital stock, (iy) request securities convertible into more than 50% of the Company’s outstanding capital stock or propose (z) any options, warrants or other rights to acquire more than 50% of the Board Company’s outstanding capital stock, or (II) control of the Company (or any within the meaning of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesRule 405 under the Securities Act of 1933), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or then the Receiving Company shall be entitled to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters actions set forth in clauses (a) through (ih) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.
Appears in 2 contracts
Sources: Confidentiality Agreement (Vital Images Inc), Confidentiality Agreement (Magenta Corp)
Standstill. (a) During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingPeriod, except as approvedprovided in Clause 4.2, invited no Investor shall, and each Investor shall procure that no Affiliate of such Investor shall, directly or waived indirectly and either alone or together, by the Company any manner acquire or the Boardseek to acquire (or agree to, offer to, accept an option or offer to, or as contemplated enter into any discussions or agreements to, acquire), whether by this Agreement:
purchase, contract or otherwise, any ownership interests or voting rights (aor rights or options to acquire such interests or rights) other than Permitted Purchases and purchases in any AY Voting Securities if the acquisition of Preemptive Right Sharesthe number of the voting rights attached to such AY Voting Securities by such Investor and/or any of its Affiliates, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives when added to the Investor the economic equivalent of ownership of an amount of securities number of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the voting rights attached to all AY Voting Securities then held by such Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Companyits Affiliates, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that aggregate, would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsuch Investor and/or its Affiliates holding, directly or indirectly, formin the aggregate more than the Standstill Percentage of the total voting rights attached to all then outstanding AY Voting Securities.
(b) Notwithstanding the foregoing, join any Investor Party may at any time acquire (and agree to, offer to, accept an option or offer to, or enter into any discussions or agreements to, acquire), whether by purchase, contract or otherwise, from any other Investor Party any ownership interests or voting rights (or rights or options to acquire such interests or rights) in any way participate AY Voting Securities, so long as (i) the aggregate Percentage Interest of all Investor Parties, collectively, does not exceed forty-one and a half per cent (41.5%), except as provided in a “partnershipClause 4.2, limited partnershipand (ii) promptly following such acquisition, syndicate, or other group” as such terms are used in the rules of the SEC with respect Investors deliver to the Company written notice of any reallocation between them of the aggregate Standstill Percentage of forty-one and a half per cent (41.5%) as may be required such that no Investor Party is in violation of Clause 4.1(a) as a result of such acquisition.
(c) In no case shall the existence of any option or agreement to acquire all or any securities portion of the Company;
(i) request or propose to the Board or the Company (Option Shares, or any discussion of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsforegoing, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any constitute a violation of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Shareholder Agreement (Atlantica Yield PLC), Shareholders Agreement (Algonquin Power & Utilities Corp.)
Standstill. During Until the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Termination Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingGroup agrees that, except as approved, invited or waived by the Company or the Board, or as contemplated by otherwise specifically provided in this Agreement:
(a) other than Permitted Purchases and purchases , no member of Preemptive Right Sharesthe Investor Group shall, in any way or in any capacity, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities alone or in concert with others, except for such actions as Nominee may take in his capacity as a director of the Company in support of transactions and initiatives approved or undertaken by the Board:
a. make, or in any way participate in, or encourage any “solicitation” (a as such term is used in the proxy rules of the Securities and Exchange Commission (the “DerivativeSEC”), except, nothing in this Section 2.1(a) shall prevent of proxies or prohibit the Investor from investing in a fund consents with respect to which the Investor does not have election or share decision-making authority over investment removal of directors or divestment decisionsany other matter or proposal;
b. initiate, propose or otherwise “solicit” (bas such term is used in the proxy rules of the SEC) make a tenderstockholders of the Company for the approval of any stockholder proposal, exchange whether made pursuant to Rule 14a-8 or other public offer to acquire Common Stock and/or Common Stock EquivalentsRule 14a-4 under the Exchange Act or otherwise;
(c) directly or indirectly, (i) c. seek to have called any call, or to request the call of, or call a special meeting of the stockholders of the Company Company; or, in its capacity as a stockholder, make a request for or propose take any matter action to be voted upon by the stockholders obtain or retain any list of the Company’s stockholders or other Company records;
d. seek election or appointment to, or (ii) propose representation on, or nominate for election to or propose the Board nomination of any person whose nomination has not been approved by a majority candidate to, the Board, except as specifically contemplated in Section 1; or seek the removal of any member of the Board (excluding Board, or a change in the Investor Designee, if any)composition or size of the Board;
(d) directly e. form or indirectlyjoin in a partnership, encouragelimited partnership, accept or support a tender, exchange syndicate or other offer or proposal by any other Person or group, including, without limitation, a group (an “Offeror”as defined under Section 13(d) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) Voting Securities, deposit any securities of the Company in Voting Securities into a voting trust or subject any securities Voting Securities to any voting agreement (other than solely with other members of the Company Investor Group with respect to Voting Securities now or hereafter owned by them in accordance with the terms of this Agreement) or take any arrangement other action that would limit or agreement otherwise restrict the ability of the Investor Group to vote or cause to be voted the Investor Voting Securities held from time to time in accordance with this Agreement;
f. with respect to the voting of such securitiesCompany or the Voting Securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act or (ii) participate in, or take any action pursuant to, any “stockholder access” proposal that may be implemented by the SEC, whether in accordance with former Rule 14a-11 or otherwise;
g. except at the request of the Board, acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any Voting Securities generally), whether by purchase, tender or exchange offer, directly through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any Voting Securities if, as a result of such acquisition, the members of the Investor Group would beneficially own in the aggregate in excess of 14.5% of the then outstanding Voting Securities;
h. except at the request of the Board, seek, propose, participate in, support, facilitate or assist any third party to seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivativeof its Affiliates or Associates;
i. except at the request of the Board, enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any similar transaction involving other Person in connection with any of the Company foregoing;
j. make any public statement or (ii) public disclosure regarding any recapitalizationintent, restructuringpurpose, liquidation plan or other extraordinary transaction proposal with respect to the Board, the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlits management, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly policies or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (affairs or any of its officerssecurities or assets or this Agreement that is inconsistent with the provisions of this Agreement, directorsincluding any intent, Affiliates employeespurpose, attorneysplan or proposal that is conditioned on, accountantsor would require waiver, financial advisors and other professional representatives)amendment, directly nullification or indirectlyinvalidation of, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a any public announcement regardingdisclosure relating to any such intent, a potential Business Combination purpose, plan, proposal or any of the matters set forth in clauses (a) through (i) abovecondition; or
(k) enter into discussions, negotiations, arrangements k. take any action challenging the validity or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in enforceability of this Section 2.1 shall prevent, restrict, encumber2, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by request the Company after or Board to agree to amend or to waive any provision of this Section 2 either publicly or in a manner that is reasonably likely to require the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) Company to disclose the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofrequest publicly.
Appears in 2 contracts
Sources: Board Nomination Agreement (Magnetek, Inc.), Board Nomination Agreement (Fundamental Global Partners)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s Affiliates or agents or other persons acting on which the Investor (including SK ecoplant his or its behalf not to, and SPV) and will cause his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall respective Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called any meeting of the stockholders of the Company alone or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by in concert with any other Person individual or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldentity, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationby purchase, tender or offer, exchange offer, purchase of the Company’s assets agreement or businessesbusiness combination or any other manner, purchase beneficial ownership of any securities of the Company or any Derivative, or securities of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Affiliate of the Company, in each case without the prior written consent if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than 14.99% of the Board (a transaction described in clauses (i) and (ii) that would result in a Change outstanding shares of Control, is referred to as a “Business Combination”)Common Stock;
(hb) act in concert with submit any Third Party shareholder proposal (pursuant to take Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any action in clauses notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(ac) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) 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 in 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 SEC nominees of the Board at the 2011 Annual Meeting or 2012 Annual Meeting as set forth in this Agreement;
(e) 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 seek to make, or make, a shareholder proposal at any meeting of the 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 initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(f) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries;
(g) 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 provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) publicly disparage any member of the Board or management of the Company; provided that this provision shall not apply to 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;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Navarre Corp /Mn/)
Standstill. During From the period date of this Agreement until the first-year anniversary hereof (such period, the “Standstill TermRestricted Period”), with respect to the Company, each Blackwells Party shall not, and shall cause its Affiliates and their respective principals, directors, members, general partners, officers, employees, consultants and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the U.S. Securities and Exchange Commission (the “SEC”), but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), involving the Company, 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 term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage, advise or influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, (i) with respect to the voting or the giving or withholding of any proxy, consent or other authority to vote involving the Company or the taking of any other action with respect to such Person’s Voting Securities or (ii) in conducting any type of referendum, binding or non-binding, involving the Company (in each case, other than Permitted Purchases such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(c) form, join or participate in any way in any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with other Affiliates of Blackwells with respect to Voting Securities now or hereafter owned by them;
(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company (other than solely through the exercise of Voting Securities held by such Blackwells Party prior to the date of this Agreement and purchases (i) identified by such Blackwells Party in its public filings with the SEC prior to the date of Preemptive Right Sharesthis Agreement or (ii) identified by such Blackwells Party in its public filings made with the SEC on the date of this Agreement, to the extent such Voting Securities were specified in drafts of such filings provided by such Blackwells Party to the Company on the date of this Agreement prior to entry into this Agreement);
(e) sell, offer or agree to sell all or substantially all voting rights decoupled from the underlying Voting Securities held by any Blackwells Party or any of its Affiliates, directly or indirectly, acquire beneficial ownership through swap or hedging transactions or otherwise;
(f) make, or in any way participate with any other Person (other than (i) the voting of Common Stock and/or Common Stock Equivalents and/or Voting Securities held by any instrument that gives Blackwells Party prior to the Investor date of this Agreement and identified by such Blackwells Party in its public filings with the economic equivalent SEC prior to the date of ownership this Agreement and (ii) the receipt of an amount consideration on the same terms as other holders of securities of the Company (a “Derivative”securities), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyin any, or (ii) propose or nominate for election any proposal that would reasonably be expected to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeresult in any, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldoffer, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender recapitalization, restructuring, liquidation, dissolution or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation its subsidiaries or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly its or indirectly, form, join their securities or in any way participate in a “partnership, limited partnership, syndicate, assets; or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)make, directly or indirectly, any amendment proposal, either alone or waiver in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any such transaction;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of Blackwells, with respect to Voting Securities now or hereafter owned by them;
(h) (A) 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, (B) seek, alone or in concert with others, the removal of any provision member of this Section 2.1 the Board, or (including this clause C) conduct a referendum of shareholders;
(i));) make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration by the Company’s shareholders;
(j) make any public announcement regardingrequest for stock list materials or other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to books and records;
(k) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any action of the actions expressly prohibited by this paragraph 4; provided, however, that could require for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation against the Company to make enforce the provisions of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a public announcement regardingRestricted Person, or bringing a responsive independent action against the Company should counterclaims be deemed insufficient to defend such Blackwells Party’s interests, (iii) responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (each, a potential Business Combination “Legal Requirement”) in connection with any legal proceeding (the “Legal Proceeding”) if such Legal Proceeding has not been initiated by, or on behalf of, or at the suggestion of, the Blackwells Parties; provided, further, that in the event any of the Blackwells Parties or any of the matters set forth in clauses Blackwells Representatives (aas such term is defined below) through (i) above; or
(k) enter into discussionsreceives any Legal Requirement, negotiations, arrangements such Blackwells Parties or agreements with any Person relating Blackwells Representatives shall give prompt written notice of such Legal Requirement to the foregoing actions referred to in (a) through (i) aboveCompany; provided, however, that nothing contained in this Section 2.1 clause (k) shall prevent, restrict, encumber, or limit in not require any manner: (A) the Investor or Blackwells Party to opt out of any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by class action lawsuits against the Company after the Second Closing Date that it has entered into not initiated in violation of this clause (k) (“Class Actions”) and to which such Blackwells Party is a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties party solely as a member result of the Board; Blackwells Parties’ ownership of Voting Securities during the class period applicable to such Class Actions;
(l) publicly disclose any intention, plan or arrangement inconsistent with any provisions of this paragraph 4;
(Cm) enter into any negotiations, agreements or understandings with any third party to take any action that any Blackwells Party is prohibited from taking pursuant to this paragraph 4; or
(n) make any request or submit any proposal to amend or waive the Investor or any terms of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, case which would reasonably be expected to result in accordance with the terms hereof and thereofa public announcement of such request or proposal.
Appears in 2 contracts
Sources: Letter Agreement (Blackwells Capital LLC), Letter Agreement (Supervalu Inc)
Standstill. During Except as otherwise provided in this Agreement, without the period prior written consent of the Trustees (such periodor following the Distribution Time, the “Standstill Term”) commencing Board), the Stockholders and the Stockholder Designees shall not, and shall cause their Affiliates and controlled Associates not to, directly or indirectly (in each case, except as of the First Closing Date and continuing until the later of permitted by this Agreement):
(i) the second other than pursuant to Sections 1(a) and 1(b) of this Agreement, nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors are to be elected; (2ndii) anniversary initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(b) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire or otherwise beneficially own (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Second Closing DateTrust or TPL Corp generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Trust or TPL Corp (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in (i) Horizon having ownership or control of, or other beneficial ownership interest in, 23.5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Horizon Cap”), (ii) SoftVest having ownership or control of, or other beneficial ownership interest in, 4.0% or more, in the date on which aggregate, of the Investor ceases to have then-outstanding Sub-share Certificates or shares of the right to designate a director to Common Stock (the Board pursuant to Section 5, and “SoftVest Cap”) or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the date on which aggregate, of the Investor then-outstanding Sub-share Certificates or shares of the Common Stock (including SK ecoplant the “Mission Cap”, and SPVeach of the Horizon Cap, the SoftVest Cap and the Mission Cap, individually, an “Ownership Cap”); provided, however, that, subject to Section 3(c), in the event that the Trust or TPL Corp (A) acquires through share purchases Sub-share Certificates or shares of the Common Stock or (B) undertakes a reverse share split, and its Subsidiaries any of such actions reduces the number of securities of the Trust or TPL Corp outstanding and thereby increases the proportionate number of Sub-share Certificates or shares of Common Stock that a Stockholder has ownership or control of, or otherwise beneficially owns, to a proportion of Sub-share Certificates or shares of the Common Stock that is equal to or greater than the applicable Ownership Cap for such Stockholder (such event, a “Share Reduction Event”), then such Stockholder shall not be deemed to have acquired or otherwise beneficially own less an amount of Sub-share Certificates or shares of the Common Stock that is greater than five percent the number of shares permitted pursuant to such Stockholder’s applicable Ownership Cap (such amount of securities in excess of a Stockholder’s Ownership Cap, the “Excess Shares”) in violation of this Section 3(b) as a result of such Share Reduction Event; provided, further, that such Stockholder shall divest its Excess Shares within a reasonable time period (but in any event, within 30 calendar days of becoming aware of such Share Reduction Event) so that such Stockholder no longer has ownership or control of, or otherwise holds a beneficial ownership interest in, such Excess Shares;
(c) sell or transfer shares of Common Stock, other than in open market sale transactions where the identity of the purchaser or transferee is not known and in underwritten widely dispersed public offerings, to any Third Party that (i) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5.0%) % or more of the shares of Common Stock then issued outstanding at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and outstandingAssociates, has a beneficial or other ownership interest in the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any aggregate of 5.0% or more of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument outstanding at such time, in each case, unless such Third Party is a passive investor that gives the Investor the economic equivalent of ownership of an amount has not been a “reporting person” on a Schedule 13D and would not, in connection with purchasing or holding of securities of the Company TPL Corp, be required to file a Schedule 13D;
(a “Derivative”)d) (i) form, except, nothing join or in this Section 2.1(a) shall prevent any way participate in any group or prohibit the Investor from investing in a fund agreement of any kind with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting voting securities of the stockholders Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Company or propose any matter to be voted upon by the stockholders of the CompanyDistribution Time), or (ii) propose or nominate for election to the Board deposit any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for voting securities of the Company (if such offer Trust or proposal would, if consummated, result TPL Corp in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject subjecting any Trust or TPL Corp voting securities of the Company to any arrangement or agreement with respect to the voting thereof;
(e) seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Governance Documents;
(f) demand an inspection of any proxy (other than pursuant to this Agreement)the Trust’s or TPL Corp’s books and records;
(g) propose make any (i) public or private (other than to the Trustees or the Board) proposal with respect to or (ii) public statement or otherwise seek to encourage, advise or assist any mergerperson in so encouraging or advising with respect to, consolidationin each case: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, business combination(B) any change in the capitalization, dividend or share repurchase policy of TPL Corp, (C) any other change in the Trust’s or TPL Corp’s business, operations, strategy, management, governance, corporate structure, or other affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of TPL Corp to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) initiate, make, effect, seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist any (i) Extraordinary Transaction, (ii) material acquisition of any assets or businesses of the Trust, TPL Corp or any of either the Trust’s or TPL Corp’s subsidiaries, (iii) tender offer or exchange offer, purchase merger, acquisition, share exchange or other business combination involving any of the Company’s voting securities or any of the material assets or businesses, purchase of any securities businesses of the Company Trust or TPL Corp or any Derivativeof their subsidiaries, or any similar transaction involving the Company or (iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary material transaction with respect to the CompanyTrust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in each case without concert with others, to the prior written consent of the Board (Trust or TPL Corp that would reasonably be expected to require a transaction described in clauses public announcement or disclosure regarding any such matter;
(i) and (ii) that would result in a Change of Controlenter into any negotiations, is referred agreements or understandings with any Third Party with respect to as a “Business Combination”);
(h) act in concert with the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request foregoing, or propose to the Board otherwise take or the Company (or cause any action inconsistent with any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))the foregoing;
(j) publicly make or in any public announcement regardingway advance publicly any request or proposal that the Trust or the Board amend, modify or take waive any action that could require the Company to make a public announcement regarding, a potential Business Combination or any provision of the matters set forth in clauses (a) through (i) abovethis Agreement; or
(k) enter into discussionstake any action challenging the validity or enforceability of this Section 3 or this Agreement, negotiations, arrangements unless TPL Corp is challenging the validity or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveenforceability of this Agreement; provided, however, that (i) nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prevent the Stockholders or limit in any manner: Stockholder Designees from making (A) the Investor or any of its Affiliates from making confidentialfactual statement in response to a Legal Requirement, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) any communication to the Investor Designee from performing its duties as a member of the Board; Trust or TPL Corp, or (C) any private communication to investors or prospective investors in any of the Investor Stockholders or any of its Affiliates from exercising their respective rightsAffiliates, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementprovided that, in each case, such statement or communication (1) is based on publicly available information; (2) is not reasonably expected to be required to be publicly disclosed by any person and is understood by all parties to be confidential communication; and (3) is not made with an intent to circumvent any of the restrictions listed in accordance with paragraphs (a) through (k) of this Section 3 or Section 4; and (ii) the restrictions in this Section 3 shall not restrict the Stockholders or Stockholder Designees from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as the other stockholders of the Trust or TPL Corp or from participating in any such transaction that has been approved by the Trustees or the Board, as applicable, subject to the other terms hereof and thereof.of this Agreement. Nothing in this Agreement shall limit the exercise in good faith by any Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 2 contracts
Sources: Stockholders' Agreement (SoftVest, LP), Stockholders Agreement (Texas Pacific Land Trust)
Standstill. During the period commencing with the Effective Date and ending August 1, 2023 (such period, the “Standstill TermPeriod”) commencing as of ), the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive will not, and will cause each of his Affiliates (iii) the date on which the Investor or any other person or entity (including SK ecoplant and SPVany Associate) and its Subsidiaries beneficially own less than five percent (5.0%acting on behalf of or at the Executive’s direction or otherwise with the Executive’s encouragement or support) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner (including by assisting, encouraging or participating with others to), alone or in concert with others (in each case, except as approved by a resolution of the Board or any committee thereof empowered to take such action):
(a) acquire, offer, seek or propose to acquire, or agree to acquire, ownership (beneficial or otherwise, and in any manner) of any debt or equity securities of the Company (including Common Stock) or rights or options to acquire beneficial such ownership or securities convertible or exchangeable into such ownership (including Redeemable Warrants), in each case excluding securities of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount Company issued as a dividend or otherwise in respect of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent otherwise owned by any such person or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany;
(b) make a tenderacquire, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyoffer, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyacquire, or agree to acquire, ownership (iibeneficial or otherwise, and in any manner) propose of any instruments, real or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board synthetic, that give Executive or his Affiliates or Associates (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person person or group (an “Offeror”entity acting on behalf of or at the Executive’s direction) for securities of the Company (if such offer right to vote or proposal would, if consummated, result in a Change of Control of direct the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any , in each case excluding securities of the Company issued as a dividend or otherwise in a voting trust or subject any respect of securities of the Company to otherwise owned by any arrangement or agreement with respect to the voting of such securities, including the granting of person and excluding any proxy (other than pursuant to this Agreement)Earnout Shares and/or Adjustment Escrow Stock;
(gc) propose (i) or effect any tender or exchange offer, merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Company or its subsidiaries;
(a transaction described in clauses d) (i) and make or participate in any “solicitation” (as defined under the Exchange Act) of proxies or consents with respect to the election or removal of directors or any other proposal (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation); (ii) that would result in a Change seek or knowingly encourage election to or representation on the Board, or nominate or recommend the nomination of Controlany candidate to the Board, is referred or the removal of any member of the Board, or call or seek to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orcall, directly or indirectly, any special meeting of shareholders of the Company for any reason whatsoever; (iii) make any stockholder proposal; (iv) seek or advise or influence any person or entity with respect to the voting of any securities of the Company; (v) 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 or challenging the policies of the Company; or (vi) otherwise act, alone or in concert with others, to seek to control or influence the management, Board, policies or affairs of the Company;
(e) form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC Exchange Act) with respect to the Company or any securities of the Company (other than (i) any group previously identified prior to the date hereof in the Schedule 13D filed by the Executive and (ii) the Irrevocable Proxy described in Section 16(k));
(f) seek to change the determination or direction of the basic decisions of the Company, the present capitalization or dividend policy of the Company, the Company’s organizational documents or take any other actions which may impede the acquisition or control of the Company by any person or entity, or otherwise take any action inconsistent with the ownership of securities “solely for the purpose of investment”;
(g) engage in any course of conduct causing the Company’s securities to become eligible for termination of registration pursuant to Section 12(g) of the Exchange Act;
(h) make a request (public or otherwise) that the prohibitions set forth in this Section 16 be waived or that the Company take any action which would permit the Executive or his Affiliates or Associates to take any of the actions prohibited by this Agreement;
(i) request publicly disclose (whether via social media platform or propose to otherwise) any intention, plan or arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));foregoing; or
(j) make knowingly encourage or assist any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or other Person in undertaking any of the matters set forth in clauses (a) through (i) above; orforegoing.
(k) enter into discussionsIn addition, negotiationsduring the Standstill Period, arrangements the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or agreements with any Person relating to by proxy at each meeting of the foregoing actions referred to in Company’s stockholders (a“Stockholder Meeting”) through and either (i) above; provided, however, that nothing contained vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) (the “Remaining Executive Shares”) at such Stockholder Meeting in this Section 2.1 shall prevent, restrict, encumberfavor of any proposal recommended by the Board, or limit (ii) abstain from voting the Remaining Executive Shares at such Stockholder Meeting. Executive acknowledges and agrees that his attendance at each Stockholder Meeting shall not be, nor be deemed to be, “in any manner: (A) protest”. In addition, simultaneously with the Investor or any execution of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementExecutive shall execute and deliver to the Company and the Board an Irrevocable Proxy (in the form attached hereto as Exhibit C) irrevocably granting the Board the power and authority to represent the Executive at any Stockholder Meeting and (aa) vote the Remaining Executive Shares in favor of any proposal advanced by the Board, or (bb) abstain from voting the Preferred Distributor AgreementRemaining Executive Shares, such Irrevocable Proxy to become effective only in each casethe event that and for so long as the Executive fails to (xx) otherwise appear in person or by proxy at any Stockholder Meeting or (yy) vote the Remaining Executive Shares in the manner set forth in this Section 16(k).
(l) If a Change in Control occurs prior to the end of the Standstill Period, then the Executive’s obligations under this Section 16 shall cease to apply as of the date of the consummation of such Change in accordance with the terms hereof and thereofControl.
Appears in 2 contracts
Sources: Settlement Agreement (Electric Last Mile Solutions, Inc.), Settlement Agreement (Electric Last Mile Solutions, Inc.)
Standstill. During (a) For a period of twelve months following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rightsor any person acting jointly or in concert with the Purchaser) to do or seek to do any of the foregoing; or (vi) advise, performing their respective obligations assist, encourage or otherwise consummating act jointly or in concert with any other person in connection with any of the transactions contemplated foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by this AgreementGCIC US Ltd., the Purchase Agreementmanager of the Vendor, Joint Venture Agreement(the “Manager”) or any of its affiliates, or other than the Preferred Distributor Agreement, in each case, in accordance Vendor and XXX (whose relationship with the Purchaser is governed by a Securities Purchase Agreement of even date herewith (the “XXX Agreement”) and the terms hereof of which agreement shall prevail in the event of any inconsistency or conflict between this Agreement and thereofthe XXX Agreement), unless such fund or product is managed by XXX, the lead portfolio manager of the Vendor.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.), Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date Company Board, CD&R Fund and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchaser Parties shall not, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or knowingly indirectly, and shall use reasonable best efforts to cause their respective Affiliates not to (iii) the date on which the Investor either individually, or in concert with any other Person, or as a “group” (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%as such term is used in Section 13(d)(3) of the Exchange Act)):
(1) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any securities or direct or indirect rights to acquire any equity securities of the Company or any of its Affiliates, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock then issued and outstanding, or substantially all of the Investor (including SK ecoplant and assets or property of the SPV) Company and its Subsidiaries shall not do (but in any of the following, except as approved, invited or waived case excluding (1) any issuance by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)or options, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange warrants or other public offer rights to acquire Common Stock and/or (or the exercise thereof) (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations and (2) the use of cash dividends received by the Purchaser Parties on the Preferred Stock to acquire shares of Common Stock Equivalents;
in open market purchases (c) directly or indirectly, (i) seek but only to have called any meeting the extent of the stockholders of such cash dividends paid by the Company or propose any matter to be voted upon by on the stockholders of the CompanyPreferred Stock), or (ii) propose or nominate for election to the Board any person whose nomination has not been approved extent permitted by a majority of the Board (excluding the Investor Designee, if anyapplicable Law);
(d2) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities than to effectuate the nomination and election of the Company Purchaser Designees pursuant to Section 4.10, make or in any way participate or engage in any “solicitation” of “proxies” (if such offer whether or proposal wouldnot relating to the election or removal of directors), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s stockholders or initiate any arrangement stockholder proposal for action by the Company’s stockholders, or agreement other than with respect to the voting of such securitiesPurchaser Designees, including seek election to or to place a representative on the granting Company Board or seek the removal of any proxy (other than pursuant to this Agreement)director from the Company Board;
(g3) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company and its Subsidiaries, or businesses, purchase of any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate (except as a holder of Common Stock or Preferred Stock) in a merger, consolidation, division, acquisition or exchange of substantially all assets or equity, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act excluding Purchaser Designees, otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board management or the Company (Board or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Subsidiaries;
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses (a) through (i) above; orthis Section 4.13(b);
(k9) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.13(b), provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the foregoing actions referred Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(11) contest the validity of this Section 4.13(b) or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to in (a) through (i) aboveamend, waive or terminate any provision of this Section 4.13(b); provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.12 4.13(a) and the other Transaction Documents) or Transfer (subject to Section 4.9 and the other Transaction Documents) their shares of Preferred Stock or Common Stock, or limit in any manner: otherwise exercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (A2) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.11, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B3) the Investor ability of any Purchaser Designee from performing its duties to act in his or her capacity as a member of the Company Board; , including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Beacon Roofing Supply Inc)
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date Company Board, CD&R Fund and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchaser Parties shall not, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or knowingly indirectly, and shall cause their respective controlled Affiliates not to (iii) the date on which the Investor either individually, or in concert with any other Person, or as a “group” (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%as such term is used in Section 13(d)(3) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:Exchange Act)):
(a1) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of Equity Securities or direct or indirect rights to acquire any Equity Securities, loans or debt securities of the Company (a “Derivative”)or any of its Affiliates, exceptany securities convertible into or exchangeable for any such Equity Securities, nothing in this Section 2.1(a) shall prevent loans or prohibit the Investor from investing in a fund with respect to which the Investor does not have debt securities or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange any options or other public offer derivative securities or contracts or instruments derived by reference to acquire Common Stock and/or Common Stock Equivalents;
(c) directly the price of Equity Securities, loans or indirectly, (i) seek to have called any meeting of the stockholders debt securities of the Company or propose its Subsidiaries or substantially all of the assets or property of the Company and its Subsidiaries (but in any matter to be voted upon case excluding any issuance by the stockholders Company of Common Shares or options, warrants or other rights to acquire Common Shares (or the exercise thereof) (A) to any Purchaser Designees as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Shares pursuant to the provisions of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority Certificate of the Board (excluding the Investor Designee, if anyDesignations);
(d2) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities than to effectuate the nomination and election of the Company Purchaser Designees pursuant to Section 4.11, make or in any way participate or engage in any “solicitation” of “proxies,” “consents” or “authorizations” (if such offer whether or proposal wouldnot relating to the election or removal of directors), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s shareholders (or action by written consent in lieu thereof) or initiate any arrangement shareholder proposal for action by the Company’s shareholders, or agreement other than with respect to the voting of such securities, including the granting of any proxy (other than Purchaser Designees pursuant to this Agreement), seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(g3) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company and its Subsidiaries, or businesses, purchase of any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective Equity Securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate (except as a holder of Common Shares or Preferred Shares) in a merger, consolidation, division, acquisition or exchange of any Equity Securities of the Company or any Subsidiary thereof or any material portion of the assets thereof, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act excluding the Purchaser Designees, otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnershipmanagement or the Company Board, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyits Subsidiaries;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses (a) through (i) above; orthis Section 4.13(b);
(k9) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including Equity Security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any Equity Securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.13(b); provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the foregoing actions referred Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(11) contest the validity of this Section 4.13(b) or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 4.13(b);
(12) deposit any Equity Securities owned thereby (whether Beneficial Ownership or record ownership) in any voting trust or subject any such Equity Securities to any arrangement or agreement (aother than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) through with respect to the voting of any such Equity Securities, other than any such voting trust, arrangement or agreement solely among CD&R Fund, the Purchaser Parties and their respective Affiliates and granting proxies in solicitations approved by the Board;
(i13) aboveengage 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 (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that derives any significant part of its value from a decline in the market price or value of any of the securities or loans of the Company or its Subsidiaries; or
(14) knowingly advise, assist, or encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.13(a) and the other Transaction Documents) or Transfer (subject to Section 4.10 and the other Transaction Documents) their Preferred Shares or Common Shares, or limit otherwise exercise rights in any manner: respect of their Preferred Shares pursuant to the Certificate of Designations, (A2) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.12, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B3) the Investor Designee from performing its duties ability of any Purchaser Designees to act in his or her capacity as a member of the Company Board; , including his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 1 contract
Standstill. During The Investor agrees that until the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until date that is the later of (i) the second (2nd) anniversary of the Second Closing DateDecember 31, 2024 and (ii) 90 days after the date first day on which no Investor Designee serves on the Board and the Investor ceases to have has no rights (or has irrevocably waived its right) under Section 5.09 (except for Section 5.09(f)), without the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of the shares of Common Stock then issued and outstandingBoard, the Investor (including SK ecoplant will not, directly or indirectly, and the SPV) will cause its Affiliates and its Subsidiaries shall and their respective principals, directors, officers, employees and agents and other Representatives acting on its behalf, acting alone or in concert with others, not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any equity securities or direct or indirect rights to acquire any equity securities of the Company, any securities convertible into or exchangeable for any such equity securities, any options or other than Permitted Purchases and purchases derivative securities or contracts or instruments in any way related to the price of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (solely to the extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the economic equivalent of ownership of aggregate (A) prior to Subsequent Common Closing, an amount greater than nine and ninety-nine-one-hundredths percent (9.99%) of securities the capital stock of the Company that is entitled to vote generally in any election of directors of the board of directors of the Company; (B) prior to the Requisite Stockholder Approval (as defined in the Certificate of Designations) being obtained, an amount greater than nineteen and ninety-nine-one-hundredths percent (19.99%) of the capital stock of the Company that is entitled to vote generally in any election of directors of the board of directors of the Company; and (C) at all times following the Subsequent Common Closing and the Requisite Stockholder Approval being obtained, an amount greater than twenty-four percent (24)% of the capital stock of the Company that is entitled to vote generally in any election of directors of the board of directors of the Company (a “Derivative”)which calculation shall, exceptin each case, nothing include the notional or other number of shares of Common Stock specified in this Section 2.1(a) shall prevent or prohibit the documentation for any Contract to which any of the Investor from investing in a fund with respect Parties are party which is designed to which produce economic benefits and risks to any of the Investor does not have or share decision-making authority over investment or divestment decisionsParties that correspond substantially to the ownership by the Investor Parties of shares of Common Stock, except in the case of any such Contract which is settled only in cash));
(b) make a tender, exchange or other any public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyannouncement with respect to, or (ii) offer, seek, propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board indicate an interest in (excluding the Investor Designee, if any);
(d) directly in each case with or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Actwithout conditions), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the Company’s assets assets, properties or businesses, purchase of any securities of the Company or any DerivativeSubsidiary of the Company, or any similar other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (iiwhether written or oral) with any recapitalizationother Person regarding any of the foregoing;
(c) make any proposal or statement of inquiry or disclose any intention, restructuringplan or arrangement inconsistent with any of the foregoing;
(d) advise, liquidation assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other extraordinary transaction with respect Person to do, any of the Companyforegoing;
(e) take any action that would, in each case without effect, require the prior written consent Company to make a public announcement regarding the possibility of a transaction or any of the Board (a transaction events described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”this Section 5.07(a);
(hf) act in concert enter into any agreements, arrangements or understandings with any Third Party third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Party) with respect to take any action in clauses (a) through (g) aboveof the foregoing, orincluding, directly or indirectlyforming, form, join joining or in any way participate participating in a “partnership, limited partnership, syndicate, or other group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing.
(g) make or in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any securities of its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director from the Board;
(h) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(i) request contest the validity of this Section 5.07 or propose make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to the Board amend, waive or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));5.07; or
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsa voting trust, negotiationsvoting agreement or similar voting arrangement with respect to any shares of Common Stock or Series A Preferred Stock (in each case, arrangements or agreements other than in accordance with any Person relating to the foregoing actions referred to in (a) through (i) above; Section 5.10). provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.07 will limit in any manner: (A1) the Investor Parties’ ability to vote (subject to Section 5.10), transfer or convert (subject to Section 6 (Right of the Holders to Convert) of the Certificate of Designations) any of its Affiliates from making confidentialSeries A Preferred Stock or Common Stock, nonpublic proposals privately make and submit to the Board for any proposal that is intended by such Investor Party to be made and submitted on a transaction involving a Business Combination following the non-publicly disclosed or announced basis (and would not reasonably be expect to require public announcement disclosure by any Person), participate in rights offerings made by the Company after to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Second Closing Date that it has entered Company held by such Investor Party, tender shares of Common Stock or Series A Preferred Stock into a definitive agreement with a Third Party for a transaction involving a Business Combination; any tender or exchange offer, effect an adjustment to the Conversion Rate pursuant to of the Certificate of Designations) or otherwise exercise rights under its Common Stock or Series A Preferred Stock or (B2) the ability of any Investor Designee from performing its duties Director to act in his or her capacity as a member of the Board; Board including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 1 contract
Standstill. During (a) From and after the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) during the date on which the Ownership Period, Investor ceases to have the right to designate a director to the Board pursuant to Section 5and its Covered Affiliates will not, and (iii) Investor will cause such Covered Affiliates not to, without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, singly or in concert with any other Person:
(i) except (i) pursuant to the exercise of preemptive rights in accordance with Section 7.5 and (ii) pursuant to open market purchases following which Investor Beneficially Owns up to (but no more than) 19.99% of Company’s outstanding Common Stock, acquire, offer or seek to acquire, agree to acquire beneficial ownership or make a proposal to acquire, by purchase or otherwise, Beneficial Ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange any options or other public offer direct or indirect rights to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders securities of the Company, or any Derivative Instruments;
(ii) propose make, engage in, or nominate for election to the Board in any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeway participate in, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group “solicitation” of proxies (an “Offeror”) for securities as such terms are used in the proxy rules of the Company Commission but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or advise, encourage or persuade, or seek to advise, encourage or persuade, any Person with respect to the voting of (if such offer or proposal would, if consummated, result execution of a proxy or written consent in a Change of Control respect of) any securities of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation any contested “solicitation” (as such terms are defined in Regulation 14A or used under the Exchange Act), or seek to advise or influence any Person, ) with respect to voting the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting;
(iii) request or demand a copy of the Company’s list of stockholders or its other books and records, whether under Section 220 of the Delaware General Corporation Law or equivalent state or federal Laws;
(iv) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks or offers to acquire Beneficial Ownership of any securities of the Company in order to affect control of the Company or has the purpose or effect 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 Company’s stockholders, whether or not such a meeting is permitted by the Governing Documents of the Company, 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 proposal with respect to the Company, the Board, the Company’s management, business or corporate structure, policies, affairs, or any of its securities or assets, including as related to the Project;
(vii) act, seek, facilitate, persuade, or encourage, alone or in concert with others, any Person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors of the Company or otherwise with respect to the Company or seek, facilitate or encourage the appointment, election or removal of any directors of the Company;
(fviii) submit, participate in, or be the proponent of, or seek, or persuade or encourage any Person, to submit, any stockholder proposal to the Company (including any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act);
(ix) deposit any securities of the Company in a any voting trust or similar arrangement or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesthereof (including by granting any proxy, including the granting of any proxy (consent, or other authority to vote), other than pursuant any such trust, arrangement or agreement among the Company and its Affiliates;
(x) otherwise act, along or in concert with others, to control or influence the Board, management or policies of the Company (it being understood that this Agreementclause (x) shall not prohibit any private discussions with the Board or management of the Company that are not otherwise expressly prohibited by this Section 7.2);
(gxi) propose (i) cause any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party Person to take any action in clauses (a) through (g) above, or, directly that Investor or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect Investor’s Covered Affiliates and their respective Representatives is prohibited from taking pursuant to the Company or any securities of the Companythis Section 7.2;
(ixii) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)request, directly or indirectly, any amendment amendment, modification or waiver of this Section 7.2 (including this clause (xii)); or
(xiii) contest the validity of this Section 7.2 or make, initiate, take or participate in any demand, Proceeding (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; 7.2. provided, however, that (a) nothing in this Section 7.2 will limit the Investor’s ability to vote (subject to Section 7.3) or Transfer (subject to Section 7.1) its Common Stock or designate any Investor Designee pursuant to Section 7.4, or the ability of any Investor Designee to deliberate, vote or otherwise exercise his or her duties in his or her capacity as a member of the Board and (b) if this Section 7.2 ceases to apply as a result of the expiration of the Ownership Period and within six (6) months of the date of such expiration the Investor acquires Beneficial Ownership of an aggregate amount of Common Stock representing at least ten percent (10%) of the aggregate outstanding Common Stock as of such time, then the restrictions contained in this Section 2.1 shall prevent7.2 will again be applicable as if the Ownership Period had never expired. Notwithstanding anything in this Section 7.2 to the contrary, restrictthe restrictions set forth in this Section 7.2 will automatically terminate on the earliest to occur of (x), encumber, the Board’s adoption of a written resolution approving a Change of Control transaction or limit in any manner: (Ay) the public announcement by a Third Party (who is not the Investor or any of its Affiliates from making confidential, nonpublic proposals to Covered Affiliates) of any tender or exchange offer the Board for a transaction involving a Business Combination following consummation of which would result in such Third Party’s acquisition of Beneficial Ownership of more than fifty percent (50%) of the public announcement by outstanding Voting Stock or equity securities of the Company after or the Second Closing Date that it has entered into voting power to elect a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Board; , and in connection therewith, the Company does not, within ten (10) Business Days after the date of the commencement of such solicitation, file with the Commission a Schedule 14D-9 with respect to such offer that recommends that the Company’s stockholders reject such offer (as long as Investor has not violated this Section 7.2 and such violation has not caused such public announcement).
(b) Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the activities of any Investor Excluded Party that is not a Covered Affiliate. The Company acknowledges that employees of Purchaser and its Covered Affiliates may serve on the governing boards, advisory committees or similar committees of Investor Excluded Parties, and information shall not be deemed to have been received by any such Investor Excluded Party solely due to such employee’s dual role (C) so long as such employee does not disclose such information to the Investor Excluded Party or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofRepresentatives).
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Minerals International Inc)
Standstill. During the period (such periodServier agrees that neither it nor any Affiliate, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, acting alone or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases part of Preemptive Right Sharesany group, shall directly or indirectly, for a period commencing on the Effective Date and ending *** after the Effective Date, without the prior written approval of MacroGenics’ Board of Directors:
15.1.1 acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d 3 under the Securities and Exchange Act of Common Stock and/or Common Stock Equivalents and/or 1934) of any instrument that gives of the Investor the economic equivalent assets or businesses of ownership MacroGenics or of an amount of any securities of the Company (a “Derivative”)MacroGenics, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have any rights or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer options to acquire Common Stock and/or Common Stock Equivalents;
any such ownership (c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by including from a majority of the Board (excluding the Investor Designee, if anythird party);
(d) directly 15.1.2 make, or indirectlyin any way ***, encourage, accept or support a tender, exchange or other offer or proposal by in any other Person or group (an “Offeror”) for securities solicitation” of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act)Commission) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securities, including the granting any voting securities of any proxy (other than pursuant to this Agreement)MacroGenics;
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, 15.1.3 form, join or in any way participate in in, a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Securities Exchange Act of 1934) with respect to any voting securities of MacroGenics;
15.1.4 otherwise act, whether alone or in concert with others, to seek to propose to MacroGenics any merger, business combination, restructuring, recapitalization or similar transaction to or with MacroGenics or otherwise act, whether alone or in concert with others, to seek to control, *** of MacroGenics who is not nominated by the Company then incumbent directors,
15.1.5 solicit, negotiate with, or provide any information to, any person with respect to a merger, exchange offer or liquidation of MacroGenics or any other acquisition of MacroGenics, any acquisition or voting securities of or all or any portion of the Companyassets of MacroGenics or any other similar transaction;
(i) request 15.1.6 announce an intention to, or propose to the Board or the Company (or *** with any third party with respect to, any of its officersthe foregoing; or
15.1.7 disclose any *** inconsistent with the foregoing, directorsor advise, Affiliates employeesassist or encourage any other persons in connection with any of the foregoing. In addition, attorneysServier hereby agrees that during the term of this Agreement, accountants, financial advisors and other professional representatives)it shall not request MacroGenics, directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 ARTICLE 15, (including this clause (i));
(jsentence.) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof***.
Appears in 1 contract
Standstill. During The PL Capital Parties each agree that during the period Standstill Period (such periodas hereinafter defined), the “Standstill Term”) commencing PL Capital Parties and their affiliates or associates (as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director defined in Rule 12b-2 promulgated pursuant to the Board pursuant to Section 5Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall they will not do any of the following, except as approved, invited assist or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities manner, without prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board of Directors of Alliance Bancorp:
(bi) make a acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift, tender, exchange or other public offer otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire Common Stock and/or Common Stock Equivalentsacquire, or securities convertible into or exchangeable for (collectively, an “Acquisition”), any securities of Alliance Bancorp, such that as a result of such of such Acquisition, the PL Capital Parties would maintain beneficial ownership in excess of 9.99% of the outstanding shares of Alliance Bancorp common stock;
(cii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (ias such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to have called advise, encourage or influence in any meeting manner whatsoever any person with respect to the voting of any voting securities of Alliance Bancorp;
(iii) form, join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the stockholders Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of Alliance Bancorp or otherwise in any manner agree, attempt, seek or propose to deposit any securities of Alliance Bancorp in any voting trust or similar arrangement, or subject any securities of Alliance Bancorp to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the Company group involving the PL Capital Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement);
(iv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (a) any of the assets, tangible and intangible, direct or indirect, of Alliance Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of Alliance Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any securities or assets of Alliance Bancorp;
(vi) otherwise act, alone or in concert with others, propose or to seek to offer to Alliance Bancorp or any of its shareholders any business combination, restructuring, recapitalization or similar transaction to or with Alliance Bancorp or the Bank or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of Alliance Bancorp or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of Alliance Bancorp, nominate any person as a director of Alliance Bancorp who is not nominated by the then incumbent directors (provided that if there is a vacancy on the Alliance Bancorp Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the Alliance Bancorp Board of Directors or the Nominating and Governance Committee of the Alliance Bancorp Board of Directors for nominees to the Board of Directors pursuant to the nomination policy adopted by the Board of Directors), or propose any matter to be voted upon by the stockholders shareholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Alliance Bancorp;
(dvii) directly or indirectly, encouragesell, accept transfer or support a tender, exchange otherwise dispose of any interest in the shares of Alliance Bancorp common stock beneficially owned by the PL Capital Parties to any person that would reasonably be understood to be the beneficial owner of 5% or other offer or proposal by any other Person or group (an “Offeror”) for securities more of the Company (if such offer or proposal would, if consummated, result in a Change outstanding shares of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Alliance Bancorp common stock;
(eviii) directly except in connection with the enforcement of this Agreement, initiate or indirectlyparticipate, solicit proxies by encouragement or consents otherwise, in any litigation against Alliance Bancorp or propose the Bank or seek their respective directors or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)officers, or seek to advise or influence in any Personderivative litigation on behalf of Alliance Bancorp, with respect to voting of any securities of the Company;except for testimony which may be required by law; or
(fix) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others to the voting of such securitiesdo, including the granting of or advise, assist or encourage others to do, any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in prohibited under clauses (i) through (viii) of this Paragraph 2, publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any Alliance Bancorp annual meeting of shareholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of Alliance Bancorp they or any of them beneficially own in favor of the nominees for election or reelection as director of Alliance Bancorp selected by the Board of Directors of Alliance Bancorp and agree otherwise to support such director candidates, and (ii2) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities other proposal submitted by any Alliance Bancorp shareholder to a vote of the Company;
(i) request or propose Alliance Bancorp shareholders, to vote all of the Alliance Bancorp shares they beneficially own in accordance with the recommendation of the Alliance Bancorp Board of Directors with respect to any such shareholder proposal. Notwithstanding anything in this Agreement to the Board contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇ or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Substitute in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties his capacity as a member of Alliance Bancorp’s Board of Directors or the BoardBank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (C2) the Investor or any ability of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement, Agreement directly with the Purchase Agreement, Joint Venture AgreementPresident and Chief Executive Officer of Alliance Bancorp, or upon invitation, with other members of management or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofboard of directors of Alliance Bancorp.
Appears in 1 contract
Sources: Standstill Agreement (Alliance Bancorp, Inc. Of Pennsylvania)
Standstill. During Until completion of the period 2023 Annual Meeting of the Stockholders of the Company (such period, the “Standstill TermAnnual Meeting”) commencing as of the First Closing Date ), no Purchaser, severally and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot jointly with any other Purchaser, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do or any of its Affiliates that are directly or indirectly controlled by such Purchaser (the following“Controlled Affiliates”), except as approveddirectly or indirectly, invited or waived by the Company or the Board, or as contemplated by this Agreementshall:
(a) other than Permitted Purchases and purchases solicit proxies or written consents of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership holders of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (or become a “Derivative”)participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any other Person in any “solicitation” of any proxy, except, nothing in this Section 2.1(aconsent or other authority (as such terms are defined under the Exchange Act) shall prevent or prohibit the Investor from investing in a fund with respect to which any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Board of Directors’ recommendation in connection with such matter) (for the avoidance of doubt, excluding such activities among members of the Investor does not have and their Controlled Affiliates); or share decision-making (ii) encourage any other Person to solicit or withhold any proxy, consent or other authority over investment with respect to any shares of Common Stock or divestment decisionsotherwise advise, encourage or influence any other Person with respect to voting any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Board of Directors’ recommendation in connection with such matter);
(b) make form or join in a tenderpartnership, exchange limited partnership, syndicate or other public offer group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to acquire the Common Stock and/or Common Stock Equivalents(for the avoidance of doubt, excluding any group composed solely of members of the Investor and their Controlled Affiliates) or otherwise support or participate in any effort by any third party with respect to the matters set forth in clause (a) above;
(c) directly or indirectly, (i) seek to have called present at any meeting Special Meeting of the stockholders Stockholders of the Company (each, a “Special Meeting”), or through action by written consent, any proposal for consideration for action by stockholders or seek the removal of any member of the Board of Directors or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate nominee for election to the Board any person whose nomination has not been approved by a majority of Directors or seek representation on the Board (excluding the Investor Designee, if any)of Directors;
(d) directly or indirectlygrant any proxy, encourage, accept or support a tender, exchange consent or other offer authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any Special Meeting) or proposal by deposit any other Person or group (an “Offeror”) for securities shares of the Company (if such offer or proposal would, if consummated, result Common Stock in a Change voting trust or subject them to a voting agreement or other arrangement of Control of similar effect with respect to any Special Meeting or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the Company, such offer or proposal is referred to as an “Acquisition Proposal”like);
(e) directly without the prior approval of a majority of the members of the Board of Directors, separately or indirectlyin conjunction with any other Person or entity in which it is or proposes to be either a principal, solicit proxies partner or consents or financing source, publicly propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)participate in, effect or seek to advise effect, any extraordinary corporate transaction, tender offer or influence exchange offer, merger, acquisition, reorganization, restructuring, recapitalization, change in the Company’s dividend policy, change in the Company’s Certificate of Incorporation or the Company’s Bylaws, business combination involving the Company or a material amount of the assets or businesses of the Company or any Person, with respect to voting action which would result in a class of any securities of the CompanyCompany being delisted from a Trading Market or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association or becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act or encourage any other person in any such activity;
(f) deposit disclose any securities of intention, plan or arrangement inconsistent with the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)foregoing;
(g) propose (i) instigate, encourage, join, act in concert with or assist any merger, consolidation, business combination, tender or exchange offer, purchase third party to do any of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);foregoing; or
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained events described in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof4.16.
Appears in 1 contract
Standstill. During (a) From the period (such period, the “Standstill Term”) commencing as date of the First Closing Date this Agreement and continuing until the later of three (i3) the second (2nd) year anniversary of the Second Closing Date, (ii) the date hereof and for such period thereafter as a Sonic Director serves on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and of Directors (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following“Standstill Period”), except as approved, invited or waived pre-approved in writing by the Company or the BoardBoard of Directors, or as contemplated by this Agreement:
(a) other than Permitted Purchases Sonic and purchases of Preemptive Right Sharesits Affiliates will not, in any manner, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) (A) acquire any additional shares of Common Stock, including through the acquisition of Beneficial Ownership of Common Stock, (B) make, initiate or, subject Section 4.02(c), participate in any tender offer or exchange offer for the Common Stock or any acquisition proposal (whether by merger, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction) involving the Company or its subsidiaries and not recommended by the Board of Directors, (C) seek to have called demand, request to demand, demand or join in any demand for a meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company’s stockholders, or (iiD) propose or nominate a director for election to the Board of Directors through any person whose nomination has not been approved by a majority “proxy access” procedure, (E) make, initiate or participate in any “solicitation” of “proxies” (as those terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) in opposition to the Board of Directors (excluding for the Investor Designeeavoidance of doubt, voting for the nominees selected by the Board of Directors shall not be deemed a solicitation of proxies), (F) fail to vote the Common Stock then held by Sonic or its Affiliates in favor of the nominees chosen by the Board of Directors, or (G) disclose any intention inconsistent with any of the foregoing; provided that, with respect to clause (F), the prohibitions on Sonic and its Affiliates contained therein shall only apply if and to the extent that the Company is, at the time of voting, in compliance with its obligations (if any) with respect to the nomination of Sonic Directors;
(ii) form, join or participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act, and the rules promulgated thereunder), other than a group involving Sonic and its Affiliates, pooling agreement, syndicate or voting trust with respect to the matters described in Section 4.02(a)(i), or otherwise act in concert with another stockholder of the Company with respect to the matters described in Section 4.02(a)(i);
(diii) directly act, alone or indirectlyin concert with others, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise control the management, the Board of Directors or influence any Person, with respect to voting of any securities policies of the Company;
(fiv) deposit seek to remove or support anyone else in seeking to remove, without cause, any securities member of the Company in Board of Directors (other than a voting trust Sonic Director), or subject encourage any securities of other Person to do so;
(v) agree or offer to take, or encourage or propose (publicly or otherwise) the Company taking of, assist, induce or encourage any other Person to take, or enter into discussions with any arrangement or agreement third party with respect to the voting taking of, any action referred to in clauses (i), (ii), (iii) or (iv) of this Section 4.02(a) (subject to the limitations stated therein); or
(vi) other than in connection with enforcement of Sonic’s rights under this Agreement, the Purchase Agreement and the other agreements contemplated thereby, otherwise act, alone or in concert with others, to knowingly and directly encourage, facilitate, incite, or seek to cause others to instigate legal proceedings against the Company or any of its Subsidiaries or their respective officers, directors, or employees.
(b) During the Standstill Period, neither the Company nor Sonic and its Affiliates shall make or issue or cause to be made or issued any disclosure, announcement, or statement (including any disclosure to any journalist, member of the media, or securities analyst) concerning the other party, in each case which disparages such other party or any of such securitiesother party’s directors, including director nominees, officers, members, employees, advisors or other affiliates; provided that nothing in this Section 4.02(b) shall preclude any Person from making or issuing, or causing to be made or issued, any disclosure, announcement or statement (i) that such Person determines in good faith is required by applicable law, rule or regulation, or (ii) in connection with a governmental investigation, audit or inquiry, legal process or any dispute involving the granting of any proxy (other than pursuant parties to this Agreement);.
(gc) propose During the Standstill Period, Sonic and its Affiliates may participate in a tender offer or exchange offer for Common Stock or any acquisition proposal (i) any whether by merger, consolidation, business combination, tender recapitalization, restructuring, liquidation, dissolution or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction other extraordinary transaction) involving the Company or its subsidiaries and not recommended by the Board of Directors, provided, that, prior to such participation, all then-serving Sonic Directors must resign from the Board of Directors. From and after such resignation(s), the Company shall have no continuing obligations regarding the nomination or appointment of Sonic Directors pursuant to Section 4.01.
(d) During the Standstill Period, Sonic and its Affiliates, whether directly or indirectly through any third-party intermediaries, shall not, publicly or privately, request that the Company or the Board of Directors waive, terminate, or amend the provisions of this Section 4.02.
(e) All of the Shares are subject to this Section 4.02. Any transferee of any of the Shares shall acknowledge and agree to be bound by the terms of this Section 4.02 for the remainder of the Standstill Period, except where such transferee acquires ownership of the Shares through a public offering that is made in compliance with this Agreement pursuant to a Registration Statement.
(f) For the purposes of this Section 4.02, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to “Beneficially Own” any Common Stock:
(i) which such Person or any of such Person’s Affiliates beneficially owns pursuant to Rule 13d-3 and Rule 13d-5 under the Exchange Act;
(ii) which such Person or any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsuch Person’s Affiliates, directly or indirectly, form, join has (A) the right or in any way participate in a “partnership, limited partnership, syndicatethe obligation to acquire (whether such right is exercisable, or such obligation is required to be performed, immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (written or oral and other group” as such terms are used in the rules of the SEC than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the Company exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; or (B) the right to vote such shares of Common Stock pursuant to any securities of the Companyagreement, arrangement or understanding (written or oral);
(iiii) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)which are beneficially owned, directly or indirectly, by any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination other Person with which such Person or any of such Person’s Affiliates has any agreement, arrangement or understanding (written or oral, but other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the matters set forth in clauses (a) through (i) abovepurpose of acquiring, holding, voting or disposing of any Common Stock of the Company; or
(kiv) enter into discussionswhich are beneficially owned, negotiationsdirectly or indirectly, arrangements by a counterparty (or agreements with any of such counterparty’s Affiliates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract) to which such Person relating to the foregoing actions referred to in (a) through (i) aboveor any of such Person’s Affiliates is a Receiving Party; provided, however, that nothing contained the number of Common Stock that a Person is deemed to Beneficially Own pursuant to this clause (iv) in connection with a particular Derivatives Contract shall not exceed the number of Notional Common Stock with respect to such Derivatives Contract; provided, further, that the number of Common Stock beneficially owned by each counterparty (including its Affiliates) under a Derivatives Contract shall for purposes of this Section 2.1 shall preventclause (iv) be deemed to include all Common Stock that are beneficially owned, restrictdirectly or indirectly, encumber, or limit in by any manner: other counterparty (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals such other counterparty’s Affiliates) under any Derivatives Contract to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; which such first counterparty (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rightssuch first counterparty’s Affiliates) is a Receiving Party, performing their respective obligations with this proviso being applied to successive counterparties as appropriate.
(g) For the purposes of this Section 4.02 “Derivatives Contract” means a contract between two parties (the “Receiving Party” and the “Counterparty”) that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock specified or otherwise consummating referenced in such contract (the transactions contemplated by this Agreementnumber corresponding to such economic benefits and risks, the Purchase Agreement“Notional Common Stock”), Joint Venture Agreementregardless of whether obligations under such contract are required or permitted to be settled through the delivery of cash, Common Stock or other property, without regard to any short position under the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofsame or any other similar contract.
Appears in 1 contract
Standstill. During The PL Capital Parties each agree that, for a period of time commencing at the period Closing and continuing for five years following the Closing (such period, the “Standstill TermPeriod”), they and their affiliates and associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) commencing as will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the First Closing Date and continuing until the later Board of (i) the second (2nd) anniversary Directors of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCentral Bancorp:
(a) other than Permitted Purchases and purchases acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Preemptive Right SharesRule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an “Acquisition”), any securities of Central Bancorp (“Securities”);
(b) make, or in any way participate in, directly or indirectly, acquire beneficial ownership alone or in concert with others, any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives “proxies” to vote (as such terms are used in the Investor the economic equivalent of ownership of an amount of securities proxy rules of the Company (a “Derivative”), except, nothing Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund any manner whatsoever any person with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsvoting of any voting securities of Central Bancorp;
(c) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting Securities of Central Bancorp;
(d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of Central Bancorp or (ii) direct or indirect rights, warrants or options to acquire any assets of Central Bancorp;
(e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any Securities or securities convertible or exchangeable into or exercisable for any Securities or assets of Central Bancorp;
(f) otherwise act, alone or in concert with others to seek to have called offer to Central Bancorp or any meeting of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with Central Bancorp or otherwise seek, alone or in concert with others to control or change the stockholders management, board of directors or policies of Central Bancorp or nominate any person as a director of Central Bancorp who is not nominated by the Company then incumbent directors, or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);Central Bancorp; or
(g) propose (i) announce an intention to do, or enter into any mergerarrangement or understanding with others to do, consolidation, business combination, tender or exchange offer, purchase any of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in prohibited under clauses (a) through (gf) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Paragraph 2, or other group” as such terms are used in the rules of the SEC with respect publicly announce or disclose any request to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or be excused from any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in obligations of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofParagraph 2.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership in excess of 17.5% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this other than the acquisition of equity-based compensation pursuant to Section 2.1(a) shall prevent 10 hereof and the exercise of any options or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decisionconversion of any convertible securities comprising such equity-making authority over investment or divestment decisionsbased compensation;
(b) make a tender, exchange 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 public offer business for consideration, or nominate any candidate for election to acquire Common Stock and/or Common Stock Equivalentsthe Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, 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 with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the New Director or any of their respective Affiliates as a result of this Agreement;
(d) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 in 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 any stockholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek 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 cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than the Shareholder Group and their Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 7, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or the New Director to vote in favor of a Sale Transaction that was approved by the Board;
(g) 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 provisions of Section 6 hereof or this Section 7, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to 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;
(i) request or propose to the Board or the Company (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 officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make enter into any public announcement regardingarrangements, understandings or agreements (whether written or oral) with, or take advise, finance, assist or encourage any action other person that could require the Company engages, or offers or proposes to make a public announcement regardingengage, a potential Business Combination or in any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(k) enter into discussions, negotiations, arrangements take or agreements cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit (x) the New Director from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required in order to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its his fiduciary duties as a member director of the Board; Company or (Cy) the Investor Shareholder Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies with respect to any Sale Transaction that has been approved by a majority of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated Board and has been announced by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 1 contract
Sources: Shareholder Agreement (Intevac Inc)
Standstill. During For a period commencing upon the period (such period, the “Standstill Term”) commencing as of the First Closing Date date hereof and continuing until ending on the later of (i) the second date Lifflander (2ndor any replacement of Lifflander appointed pursuant to Section 1(d) anniversary hereof) shall cease to be a director of the Second Closing DateCompany and (ii) September 15, 2008, no member of the MMI Group nor any of its Affiliates, without the prior written consent of the Board, will, directly or indirectly, do any of the following provided that this Section 2 shall not limit any member of the MMI Group from non-public communications with the Board and further shall not apply to actions taken by an MMI Nominee in his capacity as a director while serving as a member of the Board:
(a) acquire, offer or agree to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person or entity, by joining a partnership, limited partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities, if such acquisition, offer to acquire or agreement to acquire would result in MMI (together with any other person or entity, partnership, limited partnership, syndicate or other group) owning, controlling or otherwise having any ownership or economic interest in more than twenty percent (20%) of the outstanding shares of Common Stock;
(b) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, whether by purchase, tender or exchange offer, through the acquisition of control of another person or entity, by joining a partnership, limited partnership, syndicate or other group, any voting securities of the Company or any voting rights decoupled from the underlying voting securities held by MMI or its Affiliates or Associates to any third party, if such sale, offer to sell or agreement to sell would result in such third party, together with its Affiliates and Associates, having an ownership or economic interest in more than ten percent (10%) of the outstanding shares of Common Stock; provided that nothing in this Section 2(b) shall restrict any member of the MMI Group from engaging in open market transactions, transactions with broker dealers in the ordinary course of their business or transactions with entities that are permitted to and do file Statements on Schedule 13G with respect to the Common Stock so long as such member of the MMI Group does not have any knowledge of any plan or intention on the part of the buyer to control or seek to control, or otherwise actively influence the Board or management 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) promulgated by the SEC under Exchange Act ) of proxies or consents, (ii) the date on which the Investor ceases seek to have the right to designate a director advise, encourage or influence any person or entity with respect to the Board pursuant to Section 5voting of any voting securities of the Company, and (iii) initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the date on which SEC under the Investor Exchange Act) stockholders of the Company for the approval of stockholder proposals or other business to be considered at a stockholders meeting, or (iv) induce or attempt to induce any other person or entity to initiate any such stockholder proposal; provided that nothing in this Section 2(c) shall limit the ability of the MMI Group to communicate to any third party, including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) through the issuance of a public statement, how it intends to vote the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do beneficially owned by it on any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect matter put to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)their approval;
(d) directly form, join or indirectlyin any way participate in a partnership, encouragesyndicate, accept or support a tender, exchange or other offer or proposal by group, including without limitation any other Person or group (an “Offeror”group” as defined under Section 13(d)(3) for securities of the Company (if such offer or proposal wouldExchange Act, if consummated, result in a Change of Control with respect to any voting securities of the Company, such offer other than the MMI Group or proposal is referred to a group that includes only some or all of the persons or entities identified as an “Acquisition Proposal”)Reporting Persons” (or Affiliates thereof) in MMI’s statement on Schedule 13D/A filed with the SEC on February 20, 2008;
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any Company voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(f) seek, alone or in concert with others, (1) to call a meeting of such securitiesstockholders or solicit consents from stockholders or conduct a nonbinding referendum of stockholders, including (2) to obtain representation on the granting Board except as expressly permitted in this Agreement, (3) to effect the removal of any proxy member of the Board, (other than pursuant 4) to this Agreement)make a stockholder proposal at any meeting of the stockholders of the Company, (5) to make a request for a list of the Company’s stockholders, or (6) to amend any provision of the Company’s certificate of incorporation or bylaws;
(g) effect or seek to effect (including, without limitation, by entering into any negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, (i) any mergeracquisition of more than fifteen percent (15%) of any securities, consolidation, business combination, tender or exchange offer, purchase of the Company’s any material assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving more than fifteen percent (15%) of any of the voting securities or any similar transaction involving of the material businesses or assets of the Company or any of its subsidiaries, or (iiiii) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the Company, Company or any of its subsidiaries or any material portion of its or their businesses (each a “Transaction”); provided that nothing in each case without the prior written consent this Section 2(g) shall restrict any member of the Board (MMI Group from engaging in discussions regarding any proposed Transaction so long as the MMI Group notifies the Company of any bona fide proposals relating to a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);potential Transaction.
(h) act otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) abovecontrol or seek to control or influence or seek to influence the management, or, directly the Board or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities policies of the Company, except as otherwise expressly permitted by this Agreement;
(i) request unless required by law, make or propose issue, or cause to be made or issued, any public disclosure, announcement or statement (including without limitation the Board filing of any document or report with the Company (SEC or any other governmental agency or any disclosure to any journalist, member of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly the media or indirectly, any amendment or waiver securities analyst) (i) in support of any provision matter described in the foregoing paragraphs of this Section 2.1 2, (ii) negatively commenting upon the Company, including the Company’s business, management or board of directors, or (iii) inconsistent with, or otherwise contrary to, the provisions of this clause (i));Agreement or the statements in the joint press release issued pursuant to this Agreement; or
(j) make enter into any public announcement regardingnegotiations, agreements or understandings with any third party with respect to the foregoing, or advise, assist, encourage or seek to persuade any third party to take any action that could require the Company with respect to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsforegoing, negotiations, arrangements or agreements otherwise take or cause any action inconsistent with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Governance and Cooperation Agreement (Mmi Investments, L.P.)
Standstill. During (a) Each TPG Shareholder agrees that, until the period (such period, the “Standstill Term”) commencing as earlier of the First Closing Date and continuing until the later of three (i3) the second (2nd) year anniversary of the Second Closing Date, (ii) date hereof or the date on which such TPG Shareholder does not Beneficially Own any Company Ordinary Shares, without the Investor ceases to have prior written consent of at least a majority of the right to designate a director to the Board pursuant to Section 5Board, such TPG Shareholder shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(iiii) acquire, agree to acquire, propose or offer to acquire, or knowingly facilitate the date on which the Investor acquisition of, any Company Ordinary Shares (including SK ecoplant and SPV) and its Subsidiaries beneficially own less other than five acquisitions involving no more than three percent (5.03%) of the shares fully-diluted voting power of Common Stock then issued and outstandingthe Company Ordinary Shares in the aggregate and, in any event, such that the Investor (including SK ecoplant and the SPV) and its Subsidiaries TPG Shareholders, together with their controlled Affiliates, shall not do own, in the aggregate, 25% or more of the then-outstanding Company Ordinary Shares), other than as a result of any stock split, stock dividend or subdivision of Company Ordinary Shares or in connection with any of the followingtransactions contemplated by the Merger Agreement;
(ii) deposit any Company Ordinary Shares into a voting trust or similar contract or subject any Company Ordinary Shares to any voting agreement, except as approvedpooling arrangement or similar arrangement or other contract, invited or waived grant any proxy with respect to any Company Ordinary Shares, in each case, other than any such voting trust, voting agreement, pooling arrangement or other contract, solely among the TPG Shareholders;
(iii) other than in connection with any matter recommended by the Board, enter, agree to enter or propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its subsidiaries or an acquisition of 10% or more of the assets of the Company and its subsidiaries;
(iv) other than in connection with any matter recommended by the Board, make or as contemplated by this Agreement:
participate or engage in (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”subject to Section 5.1(b)), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting “solicitation” of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined in under Regulation 14A under the Exchange Act)) to vote any Company Ordinary Shares, or seek to advise or influence disregarding clause (iv) of Rule 14a-1(l)(2) and including any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than otherwise exempt solicitation pursuant to this AgreementRule 14a-2(b);
(gv) propose (i) publicly disclose any mergerintention, consolidationplan, business combination, tender arrangement or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeother contract prohibited by, or inconsistent with, the foregoing;
(vi) advise or knowingly assist or knowingly encourage or enter into any similar transaction involving the Company negotiations or (ii) any recapitalization, restructuring, liquidation agreements or other extraordinary transaction contracts with any other persons in connection with the foregoing;
(vii) with respect to the Company, in each case without the prior written consent any of the Board foregoing, (a transaction described in clauses (iA) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in (subject to Section 5.1(b)) a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the meaning of Section 13(d)(3) of the Exchange Act and the rules of the SEC and regulations thereunder) with respect to any common stock; (B) call, or seek to call, a meeting of the shareholders of the Company or initiate any securities shareholder proposal for action by shareholders of the Company;
(i) request or propose Company with respect to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), the foregoing or (C) directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would reasonably be expected to require the Company to make a public announcement regardingregarding the possibility of a business combination, a potential Business Combination merger, sale of assets or other type of transaction or matter described in this Section 5.1;
(viii) present at any annual meeting or any special meeting of the matters set forth Company’s shareholders or through action by written consent any proposal for consideration for action by shareholders or propose any nominee for election to the Board or seek the removal of any member of the Board of Directors, in clauses (a) through (i) aboveeach case, subject to the rights of the TPG Shareholders pursuant to Section 2.2; or
(kix) enter into discussions, negotiations, arrangements or agreements with any Person relating to request the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 5.1; provided that the TPG Shareholders may confidentially request the Company to amend or waive any provision of this Section 5.1 in a manner that would not be reasonably likely to require public disclosure by the Company or such TPG Shareholders.
(b) Notwithstanding the foregoing provisions of this Section 5.1, the foregoing provisions shall not, and are not intended to:
(i) prohibit any TPG Shareholder or any of its controlled Affiliates from privately communicating with, including making confidentialany offer or proposal to, nonpublic proposals the Board;
(ii) restrict in any manner how any TPG Shareholder or any of its controlled Affiliates votes their Company Ordinary Shares;
(iii) restrict the manner in which any TPG Director may (A) vote on any matter submitted to the Board for a transaction involving a Business Combination following or the public announcement by shareholders of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; Company, (B) participate in deliberations or discussions of the Investor Designee Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from performing its taking any action prohibited by his or her legal duties and obligations as a member of the Board; or or
(Civ) the Investor restrict any TPG Shareholder or any of its Affiliates Permitted Transferees from exercising their respective rightsTransferring any Subject Shares to any Permitted Transferees of such TPG Shareholder or any successor of such TPG Shareholder that, performing their respective obligations in any such case, agrees to be bound by the provisions contained in this Agreement.
(c) Nothing set forth in this Section 5.1 shall prohibit, restrict or otherwise consummating limit the ability of any TPG Shareholder or any Affiliate of any TPG Shareholder from engaging in any hedging and derivative transactions contemplated by if such transactions are with one or more counterparties that are nationally recognized reputable banking organizations, solely to the extent such transactions do not have the intention or purpose of circumventing the transfer restrictions contained in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During Further, at all times during the period Standstill Period, each member of the Barington Group will not, directly or indirectly, and will cause each of its Affiliates not to, directly or indirectly:
(such perioda) Solicit proxies or written consents of stockholders, conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities or become a “Standstill Termparticipant” (as defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any person or entity not party to this Agreement (a “Third Party”) commencing in any “solicitation” of any proxy, consent or other authority (as defined under the Exchange Act) to vote any shares of the Voting Securities. (b) Encourage, advise or influence any other person or assist any Third Party in encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum with respect to the Company or the Voting Securities.
(c) Form or join any partnership, limited partnership, syndicate or other group, other than the Barington Group (as comprised as of the First Closing Date and continuing until the later date of (ithis Agreement), including a group as defined under Section 13(d) the second (2nd) anniversary of the Second Closing DateExchange Act, with respect to the Voting Securities, or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clause (iia) above.
(d) Present any proposal (whether pursuant to Rule 14a-8 under the date on which the Investor ceases to have the right to designate a director Exchange Act or otherwise) for consideration for action by stockholders, propose any nominee for election to the Board pursuant or seek to Section place on, or remove from, the Board, a director.
(e) 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 the 2014 Annual Meeting or any subsequent annual meeting during the Standstill Period) or deposit any of the Voting Securities held by the Barington Group in a voting trust or subject them to a voting agreement or other arrangement of similar effect.
(f) Other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any right decoupled from such underlying security held by the Barington Group to any Third Party that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) % or more of the shares of Common Stock then issued and outstandingoutstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any aggregate of 5% or more of the followingshares of Common Stock outstanding at such time, except as approvedin each case in a transaction approved by the Board.
(g) Make any request under Section 220 of the DGCL, invited other than any request made by a director under Section 220(d).
(h) Threaten, file or waived by otherwise commence or cause to be threatened, filed or otherwise commenced, any complaint, litigation, claim, action, suit or similar proceeding (collectively, a “Legal Proceeding”) against the Company or the Boardits Affiliates, directors, officers or as contemplated by this Agreement:
employees (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, except (i) seek to have called any meeting of solely in connection with enforcing the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, Barington Group’s rights hereunder or (ii) propose any Legal Proceeding in a capacity other than as a stockholder or nominate for election director of the Company and only with respect to matters not relating to corporate activities or actions) unless approved in writing in advance by the Company.
(i) Make any public statement or statement reasonably likely to be made public (including by requiring the Company to make public disclosure) regarding the Company or its Affiliates, officers, directors, employees, businesses or strategies, unless approved in writing in advance by the Company (except to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeextent, if any, required to be disclosed by the Barington Group in a Schedule 13D filing or in response to a court order or a judicial or regulatory demand);.
(dj) directly Effect, seek to effect or indirectly, encourage, accept in any way assist or support a tender, exchange facilitate any other person in effecting or other seeking to effect any:
(i) tender offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such exchange offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any acquire securities of the Company;
(fii) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) interest in any merger, consolidation, material asset or business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries;
(iii) merger, acquisition, share exchange or any similar transaction other business combination involving the Company or any of its subsidiaries; or
(iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the Company, in each case without the prior written consent Company or any of the Board (a transaction described in clauses (i) and (ii) that would result in a Change its subsidiaries or material portion of Control, is referred to as a “Business Combination”);its or their businesses.
(hk) act Request in concert writing any waiver, consent under or any amendment of, any provision of this Agreement.
(l) File or commence any Legal Proceeding to contest the validity of this Section 3 or to seek a release from any restriction contained in this Section 3.
(m) Enter into any discussion, negotiation, agreement or understanding with any Third Party with respect to the foregoing or advise, assist, encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to foregoing. For the Board or avoidance of doubt, the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision provisions of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 3 shall prevent, restrict, encumber, or not limit in any manner: (A) respect the Investor actions of any director of the Company in his or any of its Affiliates from making confidentialher capacity as such, nonpublic proposals recognizing that such actions are subject to such director’s fiduciary duties to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing and its duties as a member stockholders. For purposes of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement“Standstill Period” means the period from the date hereof until 90 days prior to the date of the annual meeting of stockholders of the Company to be held in 2015 (the “2015 Annual Meeting”) or, Joint Venture Agreementif earlier, 10 days prior to any advance notice deadline for making director nominations at the 2015 Annual Meeting; provided, that the Standstill Period will be extended as set forth below:
(n) If the Company recommends (or has notified Barington in writing of its commitment to recommend) that its stockholders vote for the Preferred Distributor Agreementre-election of the New Nominees at the 2015 Annual Meeting (regardless of whether the New Nominees agree to stand for re-election) and supports the New Nominees for election in no less rigorously and favorably a manner than it supports all of its other nominees, then the Standstill Period will continue until 90 days prior to the date of the annual meeting of stockholders of the Company to be held in 2016 (the “2016 Annual Meeting”) or, if earlier, 10 days prior to any advance notice deadline for making director nominations at the 2016 Annual Meeting.
(o) Notwithstanding anything in this Agreement to the contrary, until the end of the Standstill Period, the Barington Group will cause all Voting Securities with respect to which it has any voting authority, whether owned of record or beneficially owned, as of the record date for any annual or special meeting of stockholders or in connection with any solicitation of stockholder action by written consent (each a “Stockholders Meeting”) within the Standstill Period, in each casecase that are entitled to vote at any such Stockholders Meeting, in accordance to be present for quorum purposes and to be voted at all such Stockholders Meetings or at any adjournments or postponements thereof (i) for all directors nominated by the Board for election at such Stockholders Meeting and (ii) for all other routine matters such as the Company advisory vote on executive compensation and ratification of auditors. In the event that the Company does not nominate the New Nominees for re-election at the 2015 Annual Meeting, the Standstill Period ends and any member of the Barington Group nominates, or publicly announces an expectation that it will nominate, candidates for election to the Board at the 2015 Annual Meeting, the New Nominees shall resign from the Board simultaneously with the terms hereof and thereofany such nomination or public announcement.
Appears in 1 contract
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DateCompany Board, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant CD&R Fund and the SPV) and its Subsidiaries Purchaser Parties shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesnot, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or and shall cause their respective Affiliates not to (either individually, or in concert with any instrument that gives the Investor the economic equivalent of ownership of an amount of securities other Person, or as a “group” (as such term is used in Section 13(d)(3) of the Company (a “Derivative”Exchange Act), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;):
(b1) acquire, offer or seek to acquire, agree to acquire or make a tender, exchange or other public offer proposal to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek except in nonpublic communications that would not reasonably be expected to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of require the Company, the Purchaser Parties, any of their respective Affiliates or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person to make any public announcement or group (an “Offeror”) for securities other disclosure with respect thereto, including pursuant to Section 13 of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), by purchase or otherwise, of record or through Beneficial Ownership, directly or indirectly, any Equity Securities, loans or debt securities of the Company or any of its Subsidiaries or direct or indirect rights to acquire any Equity Securities, loans or debt securities of the Company or any of its Subsidiaries, any securities or rights convertible into or exchangeable for any such Equity Securities, loans or debt securities or any options or other derivative securities or contracts or instruments in any way related to the price of Equity Securities, loans or debt securities of the Company or any of its Subsidiaries or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding any issuance by the Company or any Subsidiary thereof of any of the foregoing (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations); provided, that notwithstanding the foregoing or any other limitation imposed by this Agreement, CD&R Fund, Purchaser Parties and their respective Affiliates shall be permitted to acquire shares of Common Stock in the open market or otherwise so long as, after giving effect to the acquisition thereof, CD&R Fund, Purchaser Parties and their respective Affiliates, in the aggregate, would not Beneficially Own or have economic exposure to greater than 19.9% of the then outstanding Common Stock assuming the conversion into Common Stock of all shares of Preferred Stock held by the CD&R Fund, the Purchaser Parties and their respective Affiliates; provided further that, for the avoidance of doubt, the foregoing limitation shall in no manner limit the Company’s obligation to pay dividends or any other premiums (including redemption premiums) on the Preferred Stock in accordance with the provisions set forth in the Certificate of Designation (and, for purposes of the foregoing calculation, the CD&R Fund, Purchaser Parties and their respective Affiliates’ Beneficial Ownership and economic exposure shall not be impacted by any such premiums or dividends to the extent in excess of 19.9%);
(2) other than solely to effectuate the nomination and election of the Purchaser Designees pursuant to Section 4.8, make or in any way participate or engage in any “solicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s stockholders (or action by written consent in lieu thereof) or initiate or make any arrangement or agreement stockholder proposal for action by the Company’s stockholders, other than with respect to the voting of such securities, including the granting designation of any proxy (other than Purchaser Designees pursuant to this Agreement)Agreement or the solicitation of “proxies” or consents with respect to the election of Persons nominated to be directors by the Company Board, seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(g3) make any announcement with respect to, or offer, propose or indicate an interest in (iin each case with or without conditions) (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company or businessesits Subsidiaries, purchase of or any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective securities or assets, or enter into any negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person (other than advisors of the CD&R Fund, the Purchaser Parties and their respective Affiliates, in such advisors’ capacity as such) regarding any of the foregoing;
(4) effect or seek to effect (including by entering into negotiations, agreements or understandings with any third person), offer or propose (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act) to effect, or cause or participate in, or in any way assist or facilitate (including through the provision of financing) any other Person to effect or seek, offer or propose to effect or participate in a merger, consolidation, division, acquisition or exchange of any Equity Securities of the Company or any Subsidiary thereof or any material portion of the assets thereof, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnershipmanagement or the Company Board, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyits Subsidiaries;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) other than in respect of purchases of Common Stock not prohibited by clause (1), take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses this Section 4.10;
(a8) enter into any negotiations, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) through with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (ias such term is used in Section 13(d)(3) aboveof the Exchange Act) with any third party with respect to any securities of the Company or its Subsidiaries or otherwise in connection with any of the foregoing;
(9) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.10, provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.10, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(10) contest the validity of this Section 4.10 or make, initiate, take or participate in any demand or action (legal or otherwise) to alter or terminate any provision of this Section 4.10;
(11) deposit any Equity Securities owned thereby (whether Beneficial Ownership or record ownership) in any voting trust or subject any such Equity Securities to any arrangement or agreement (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) with respect to the voting of any such Equity Securities, other than any such voting trust, arrangement or agreement solely among CD&R Fund, the Purchaser Parties and their respective Affiliates and granting proxies in solicitations approved by the Board;
(12) 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 (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that derives any significant part of its value from a decline in the market price or value of any of the securities or loans of the Company or its Subsidiaries; or
(k13) enter into discussionsadvise, negotiationsassist, arrangements knowingly encourage or agreements with direct any Person relating to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 shall prevent4.10 will limit (1) the Purchaser Parties’ ability to submit on a confidential basis any communication or proposal to the Company Board that would not reasonably be expected to require the Company, restrictthe Purchaser Parties, encumberany of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act, (2) the Purchaser Parties’ ability to vote (subject to the terms of this Agreement and other Transaction Documents) or Transfer (subject to Section 4.7 and the other Transaction Documents) their shares of Preferred Stock or Common Stock, or limit in any manner: otherwise exercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (A3) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.9, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B4) the Investor ability of any Purchaser Designee from performing its duties to act in his or her capacity as a member of the Company Board; , including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 1 contract
Standstill. During 2.1 Separate and apart from the duties and responsibilities of the Shareholder Director (as defined below), the Shareholder agrees that, until the date that is eighteen (18) months from the Closing, except in the case of Section 2.1(d) below, which shall continue until the date that is thirty-six (36) months from the Closing, at which times the standstill period shall end (the “Standstill Period”), (unless specifically requested in writing by the Company, acting through a resolution of a majority of Company’s directors), it shall not, and shall cause each of its controlled Affiliates (other than any Non-Private Equity Business (as defined below) of the Shareholder or its Affiliates) (such periodcontrolled Affiliates, together with the Shareholder, the “Standstill TermPrincipal Shareholder Affiliates”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
to: (a) other than Permitted Purchases and purchases of Preemptive Right Sharesmake, or in any way participate in, directly or indirectly, acquire beneficial ownership any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under the Exchange Act), proxy rules of the SEC) or consents to vote or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities other stockholder of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company 2 (b) seek, alone or any Derivativein concert with others, representation on the Board (other than to ensure compliance with the terms of this Agreement) or otherwise seek, or knowingly encourage any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction removal of directors with respect to the Company or, except through the Shareholder Director or Observer, acting in such Shareholder Director’s or Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company, in each case without seek or knowingly encourage any third Person with respect to the prior written consent election or removal of the Board any directors; (a transaction described in clauses (ic) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Exchange Act) with respect to Common Stock or Common Stock Equivalents; (d) 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, syndicate or other group” as such terms are used in , through swap or hedging transactions any short sale (whether or not against the rules box) or any purchase, sale or grant of the SEC any right (including, without limitation, any put or call option) 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 the Shares or otherwise, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Principal Shareholder Affiliates owning, controlling or otherwise having any beneficial or other ownership interest in more than 19.9% of Common Stock outstanding at such time; provided, that, nothing herein will require Common Stock to be sold to the extent that the Principal Shareholder Affiliates, collectively, exceed the ownership limit under this clause (c) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock; (e) except through the Shareholder Director or Observer, acting in such Shareholder Director’s or Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company;
(i) request , otherwise act, alone or propose in concert with others, to seek to control, advise, change or influence the Board or the Company (or any management, board of its officers, directors, Affiliates employeesgoverning instruments, attorneys, accountants, financial advisors and other professional representatives), directly policies or indirectly, any amendment or waiver affairs of any provision of this Section 2.1 the Company; (including this clause (i));
(jf) make any public announcement regardingdisclosure, or take any action that could require the Company to make a any public announcement regardingdisclosure, a potential Business Combination or with respect to any of the matters set forth in clauses this Section 2.1; (g) disclose any intention, plan or arrangement inconsistent with the foregoing; or (h) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other Persons in connection with any of the foregoing.
2.1 The restrictions set forth in Section 2.1 shall not apply if any of the following occurs: (a) through in the event that the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (iincluding, but not limited to, beneficial ownership) abovevoting securities of the resulting corporation having 50% or less of the total voting power of the outstanding voting securities; or(b) in the event that a tender offer or exchange offer for at least 50.1% of the outstanding voting securities of the Company is commenced by a third Person; or 3 (c) the Company solicits from one or more Persons or enters into discussions with one or more Persons regarding, a proposal with respect to a merger of, or a business combination transaction involving, the Company, in each case without similarly soliciting a proposal from the Shareholder, or the Company makes a public announcement that it is seeking to sell itself and/or explore strategic alternatives and, in such event, such announcement is made with the approval of its Board of Directors.
(k) enter into discussions, negotiations, arrangements or agreements with 2.2 Nothing in this Section 2 shall restrict the Shareholder from making any Person relating proposal directly to the foregoing actions referred Board of Directors on a confidential basis or from voting its Common Stock or Common Stock Equivalents in any manner the Shareholder and its Principal Shareholder Affiliates determine in their sole discretion.
2.3 If the terms of this Section 2 conflict in any way with the provisions of the Confidentiality Agreement, then the provisions of this Section 2 shall control. The Confidentiality Agreement shall terminate upon the occurrence of the Effective Time, but shall continue in full force and effect until the Effective Time, and thereafter, the confidentiality obligations set forth in Section 5 below shall continue in full force and effect in accordance with the terms of this Agreement.
2.4 For purposes of this Agreement, “Non-Private Equity Business” shall mean any business or investment of the Shareholder and its Affiliates distinct from the business of primarily making investments as conducted the Shareholder and its Affiliates; provided, that such business or investment shall not be deemed to in be distinct from such private equity business if and at such time that (a) through any confidential information with respect to the Company or its Subsidiaries is made available to investment professionals of such business or investment who are not involved in the private equity business and who are involved in such other business or investment or (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (Ab) the Investor Shareholder or any of its Affiliates from making confidential, nonpublic proposals instructs any such business or investment to the Board for a transaction involving a Business Combination following the public announcement take any action that would violate any provision of this Agreement had such action been taken directly by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofShareholder.
Appears in 1 contract
Sources: Principal Shareholder Agreement
Standstill. During Until the period (such period, date that is the “Standstill Term”) commencing as of the First Closing Date and continuing until the later earlier of (i) the second date the Purchasers and their Affiliates are no longer entitled to designate any Investor Directors pursuant to the Certificate of Designation or Section 4.15 hereof and (2ndii) anniversary the date the Company fails to fully declare and pay all accrued dividends in cash on a “Dividend Payment Date” (as defined in the Certificate of Designation) occurring after April 26, 2021 pursuant to the Certificate of Designation, each Purchaser agrees that such Purchaser and its Affiliates who hold any shares of Purchased Stock or any shares of Common Stock acquired upon a conversion of the Second Closing Dateshares of Preferred Stock issued under this Agreement will not, except as expressly approved or invited in writing by the Board of Directors, directly or indirectly, through their subsidiaries, Affiliates or any other Persons, or in concert with any Person, or as part of a group that is deemed to be a “person” under Section 13(d)(3) of the Exchange Act:
(a) acquire or offer or agree to acquire, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), of any shares of Common Stock or other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, other than (i) the acquisition of the Purchased Shares pursuant to this Agreement, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) acquisition of the shares of Common Stock then issued and outstandingupon any conversion of the Purchased Shares or upon payment of any dividends thereon, the Investor acquisition of shares of Common Stock upon any conversion pursuant to the Second Lien Credit Agreement, any accretion ot the liquidation preference or convertible amount with respect to the Preferred Stock or Second Lien Credit Agreement or any adjustments to the conversion price or conversion ratio or (including SK ecoplant and the SPViv) and its Subsidiaries shall not do receiving any shares of the following, except as approved, invited or waived securities generally distributed by the Company or an acquirer or target of the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership Company to holders of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsPreferred Stock;
(b) make a tenderor participate in any solicitation of proxies (as such term is defined in Rule 14a-1 under the Exchange Act) or consents, exchange whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, with respect to any matter from any holder of shares of Common Stock or other public offer to acquire voting securities of the Company, or any securities exercisable or exchangeable for or convertible into shares of Common Stock and/or Common Stock Equivalentsor other voting securities of the Company, or make any communication exempted from the definition of solicitation by Rule 14a-1(1)(2)(iv) under the Exchange Act (other than communications in the ordinary course of business on a confidential basis among such Purchaser and its Affiliates);
(c) directly other than through the Company or indirectlyBoard of Directors, (i) seek to have called call or request any special meeting of the stockholders holders of Common Stock or other voting securities of the Company or submit or propose the submission of any matter to be voted upon by a vote of the stockholders holders of Common Stock or other voting securities of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly other than through the Company or indirectlyBoard of Directors, encourageeffect or agree, accept offer, seek or support a tenderpropose to effect any business combination, exchange merger, tender offer, sale or acquisition of substantially all of the assets, restructuring, recapitalization, liquidation, dissolution or other offer or proposal by any other Person or group (an “Offeror”) for securities of extraordinary transaction involving the Company (if such offer or proposal would, if consummated, result in a Change any of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)its Subsidiaries;
(e) directly or indirectly, solicit proxies or consents otherwise seek or propose to influence, control or seek change the Board of Directors, management, policies, affairs, strategy or become a participant in a solicitation (as such terms are defined in Regulation 14A under organizational documents of the Exchange Act), Company or seek to advise or influence any Person, with respect to voting of its Subsidiaries by way of any public communication or other communication to holders of Common Stock or other voting securities of the Company;
(f) deposit enter into any securities of the Company in a voting trust discussions, negotiations, agreements, arrangements or subject understandings with, or intentionally assist, advise or encourage, any securities of the Company to any arrangement or agreement other Person with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction matter described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in the foregoing clauses (a) through (e) of this Section 4.2;
(g) above, or, directly intentionally take any action that would reasonably be expected to cause or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to require the Company or any securities of the Company;
(i) request or propose to the Board or the Company (such Purchaser or any of its officersAffiliates to make any public announcement or other public disclosure with respect to any of the matters described in this Section 4.2; or
(h) intentionally publicly disclose any intention, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly plan or indirectly, any amendment or waiver of arrangement inconsistent with any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above4.2; provided, however, that nothing contained in this Section 2.1 shall prevent4.2 will limit (i) any Purchaser’s ability to vote or, restrictsubject to the other restrictions set forth herein and in the Certificate of Designation, encumbertransfer its Securities, any amounts outstanding under the Second Lien Credit Agreement or limit in any manner: other securities of the Company issued on conversion of the amounts outstanding under the Second Lien Credit Agreement or otherwise exercise its rights under the Certificate of Designation or Second Lien Credit Agreement, (Aii) the Investor or ability of any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement director designated by the Company after Purchasers pursuant to this Agreement or the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing Certificate of Designation to vote, exercise its fiduciary duties as or otherwise fully participate as a member of the Board; Board of Directors, (iii) the ability of the Purchasers to assert or protect their rights as a stockholder of the Company in the event of the commencement of any bankruptcy or similar proceeding or assignment for the benefit of creditors involving the Company or (Civ) the Investor or any ability of its Affiliates the Purchasers to exercise their rights to appoint directors and observers pursuant to this Agreement and the Certificate of Designation. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets and barriers are in place to prevent such portfolio managers from exercising their respective rightsobtaining such knowledge, performing their respective obligations or otherwise consummating the transactions contemplated covenant set forth above in Section 4.2(a) shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement; provided, that such assets managed by other managers not subject to such covenant does not exceed 1% of the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof Common Stock then issued and thereofoutstanding.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases ▇▇▇▇▇▇▇ Global agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(bi) make a tenderengage in, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, any “solicitation” (ias defined in Rule 14a-l of Regulation 14A) seek to have called any meeting of the stockholders of the Company proxies (or propose any matter to be voted upon by the stockholders of the Company, written consents) or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or directly or indirectly recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any securities withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of stockholders) or grant a proxy, consent or other authority with respect to the voting of the CompanyCommon Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(fii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of ▇▇▇▇▇▇▇ Global 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;
(iii) deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of ▇▇▇▇▇▇▇ Global and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any proxy directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(viii) 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, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders (other than pursuant to this Agreementsuch encouragement, support or influence that is consistent with Company’s management or the Board’s recommendation in connection with such matter);
(gx) propose other than through action at the Board by the New Director acting in his capacity as a director of the Company, seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(ixi) 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 purchase, sale or transfer of the Company’s assets or businessessecurities, purchase of any securities of the Company dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent its subsidiaries, its Affiliates or its business(es), whether or not any such transaction involves a change of control of the Board Company (a transaction any of the transactions or events described in clauses this subsection (i) and (ii) that would result in a Change of Controlxii), is referred to as a “Business CombinationTransaction”);
(hxii) act in concert with any Third Party acquire, announce an intention to take any action in clauses (a) through (g) aboveacquire, oroffer or propose to acquire, or agree to acquire, directly or indirectly, formby purchase or otherwise, join or in beneficial ownership of any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used Common Stock of the Company representing in the rules aggregate (among ▇▇▇▇▇▇▇ Global and its Affiliates and Associates) in excess of 15% of the SEC Company’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by ▇▇▇▇▇▇▇ Global on the date of this Agreement);
(xiii) 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 reasonably be expected to trigger public disclosure obligations for any Party; or
(xiv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 3(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any securities Transaction that has been approved by a majority of the Board and has been announced by the Company;, ▇▇▇▇▇▇▇ Global from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies consistent with the Board’s recommendation in connection with such matter.
(b) As used in this Agreement:
(i) request the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include (A) any person that is a publicly held corporation or propose to organization and is an Affiliate or Associate solely by reason of the Board fact that a principal or representative of ▇▇▇▇▇▇▇ Global serves as a member of the Company board of directors or similar governing body of such corporation or organization, (B) any principal or representative of ▇▇▇▇▇▇▇ Global solely in its capacity as a member of the board of directors or similar governing body of a publicly held corporation or organization, or (C) any corporation or organization that is an Associate of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)a person solely because such person, directly or indirectly, any amendment is the beneficial owner of 10% or waiver more of any provision class of this Section 2.1 (including this clause (i))equity securities of such corporation or organization and is not an Affiliate of such person;
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Sources: Board Composition Agreement (Career Education Corp)
Standstill. During The Investor Parties agree that until the period date that is six (such period, 6) months after the date that the 10% Beneficial Ownership Requirement is no longer satisfied (the “Standstill TermExpiration Date”) commencing as ), without the prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingBoard, the Investor (including SK ecoplant Parties will not, directly or indirectly, and the SPV) and its Subsidiaries shall will cause their Affiliates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of equity securities or direct or indirect rights to acquire any equity securities of the Company (a “Derivative”)Company, exceptany securities convertible into or exchangeable for any such equity securities, nothing any options or other derivative securities or contracts or instruments in this Section 2.1(a) shall prevent or prohibit any way related to the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsprice of shares of Common Stock;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
in any way encourage or participate in any “solicitation” of “proxies” (c) directly whether or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to any arrangement or agreement with respect to place a representative on the voting of such securities, including the granting of any proxy Board (other than the Investor Director pursuant to this Agreementthe nomination rights provided herein) or seek the removal of any director from the Board (other than the Investor Director pursuant to the director removal rights provided herein);
(gc) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the Company’s assets assets, properties or businesses, purchase of any securities of the Company or any DerivativeSubsidiary of the Company, or any similar other extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent Subsidiary of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the Companyforegoing;
(id) request other than with respect to any Investor Director acting in his or propose her capacity as a member of the Board, otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the Board management, board of directors or policies of the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Subsidiaries;
(je) make any public announcement regardingproposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) 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;
(g) take any action that could would require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses this Section 4.06;
(ah) through enter into any agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing;
(i) aboverequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 4.06; provided that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.06, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(kj) enter into discussionscontest the validity of this Section 4.06 or make, negotiationsinitiate, arrangements take or agreements with participate in any Person relating demand, Action (legal or otherwise) or proposal to the foregoing actions referred to in (a) through (i) aboveamend, waive or terminate any provision of this Section 4.06; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 4.06 will limit in any manner: (A1) the Investor Parties’ ability to vote (subject to Section 4.10), Transfer or Hedge (subject to Section 4.07), convert shares of Series A Preferred Stock into Common Stock (subject to Section 6 of the Certificate of Designations), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of its Affiliates from making confidentiala foreclosure thereunder, nonpublic proposals privately make and submit to the Company and/or the Board for any proposal that is intended by the Investor Parties to be made and submitted on a transaction involving a Business Combination following the non-publicly disclosed or announced basis (and would not reasonably be expect to require public announcement disclosure by any Person), participate in rights offerings made by the Company after to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Second Closing Date Company held by the Investor Parties, tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer (subject to Section 4.07), effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights under its Common Stock or Series A Preferred Stock that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; are not the subject of this Section 4.06 or (B2) the ability of the Investor Designee from performing its Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During The Purchaser agrees that during the period (such periodApplicable Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, the Purchaser will not, directly or as contemplated by this Agreementindirectly, and will cause its Affiliates not to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities or direct or indirect rights to acquire any equity securities of the Company or any of its Affiliates, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) to any Purchaser Director (A) as compensation for their membership on the Board or (B) as a “Derivative”result of a dividend payment on, or the conversion of, the Series A Preferred Stock pursuant to the provisions of the Certificate of Designations), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;.
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
in any way encourage or participate in any “solicitation” of “proxies” (c) directly whether or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in a voting trust or subject any securities of its Subsidiaries (excluding any votes required for the approval of the Company Transactions), or call or seek to call a meeting of the Company’s stockholders or initiate any arrangement stockholder proposal for action by the Company’s stockholders, or agreement other than with respect to the voting of such securitiesPurchaser Director, including seek election to or to place a representative on the granting Board or seek the removal of any proxy (other than pursuant to this Agreement)director from the Board;
(gc) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets of the Company and its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing; provided that the Purchaser may make confidential proposals to the Board of Directors of the Company regarding mergers, consolidations or other business combinations with the Company or a purchase of all or substantially all of the Company’s assets so long as such proposals would not reasonably be expected to require any public disclosure by the Company;
(d) otherwise act, alone or businessesin concert with others, purchase to seek to control or influence, in any manner, management or the board of any securities directors of the Company or any Derivative, or any similar transaction involving of its Subsidiaries (other than in the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent capacity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”Purchaser Director);
(he) act in concert make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any Third Party of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to take do, or to advise, assist, encourage or direct any action in clauses (a) through other Person to do, any of the foregoing;
(g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would, in effect, require the Company to make a public announcement regarding, a potential Business Combination or with respect to any of the matters set forth in clauses (a) through (i) above; orforegoing;
(kh) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, the Purchaser or any Specified Affiliate) with respect to any of the foregoing actions referred foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in (a) through connection with any of the foregoing;
(i) aboverequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided that this clause shall not prohibit the Purchaser or any Specified Affiliate from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(j) contest the validity of this Section 5.07 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.07; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.07 will limit in any manner: (A1) the Investor ability of Purchaser or any Specified Affiliates to vote (subject to Section 5.11), Transfer (subject to Section 5.08), convert (subject to Section 6 of the Certificate of Designations) or otherwise exercise rights under its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; Common Stock or Series A Preferred Stock or (B2) the Investor Designee from performing its ability of any Purchaser Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board; or (C) . Notwithstanding the Investor or any expiration of the Applicable Standstill Period with respect to Section 5.07(a), until the Fall-Away of Purchaser Board Rights, the Purchaser and its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating shall not acquire beneficial ownership (calculated pursuant to Rule 13d-3 of the transactions contemplated by this Agreement, Securities Exchange Act) of more than 31.5% of the Purchase Agreement, Joint Venture Agreement, or outstanding shares of Common Stock of the Preferred Distributor Agreement, in each case, in accordance with Company without the terms hereof and thereofprior approval of the Board.
Appears in 1 contract
Standstill. During Until the period (such period, the “applicable Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Termination Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) each Värde Party agrees that such Värde Party and its Subsidiaries beneficially own less than five percent (5.0%) Affiliates who hold any shares of the Preferred Stock, any Common Shares or any shares of Common Stock then issued and outstanding, pursuant to the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingOctober Transaction Agreement will not, except as approved, expressly approved or invited or waived in writing by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases Board of Preemptive Right SharesDirectors, directly or indirectly, through their subsidiaries, Affiliates or any other Persons, or in concert with any Person, or as part of a group that is deemed to be a “person” under Section 13(d)(3) of the Exchange Act:acquire or offer or agree to acquire, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 13d-3 under the Exchange Act), of any shares of Common Stock or seek other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, other than (i) the acquisition of the Exchanged Shares pursuant to advise this Agreement, (ii) the acquisition of the Underlying Shares upon any conversion of the Exchanged Series E Shares or influence upon payment of any Persondividends thereon, any increase of the liquidation preference or convertible amount with respect to the Preferred Stock or any adjustments to the conversion price or conversion ratio or (iv) receiving any shares of securities generally distributed by the Company or an acquirer or target of the Company to holders of Common Stock or Preferred Stock;
(a) make or participate in any solicitation of proxies (as such term is defined in Rule 14a-1 under the Exchange Act) or consents, whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, with respect to any matter from any holder of shares of Common Stock or other voting securities of the Company, or any securities exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, or make any communication exempted from the definition of solicitation by Rule 14a-1(1)(2)(iv) under the Exchange Act (other than communications in the ordinary course of business on a confidential basis among such Värde Party and its Affiliates);
(b) other than through the Company or Board of Directors, call or request any special meeting of holders of Common Stock or other voting securities of the Company or submit or propose the submission of any matter to a vote of the holders of Common Stock or other voting securities of the Company;
(fc) deposit other than through the Company or Board of Directors, effect or agree, offer, seek or propose to effect any securities business combination, merger, tender offer, sale or acquisition of substantially all of the Company in a voting trust assets, restructuring, recapitalization, liquidation, dissolution or subject any securities of other extraordinary transaction involving the Company to or any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)its Subsidiaries;
(gd) otherwise seek or propose (i) any mergerto influence, consolidationcontrol or change the Board of Directors, business combinationmanagement, tender policies, affairs, strategy or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities organizational documents of the Company or any Derivative, or of its Subsidiaries by way of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation public communication or other extraordinary transaction with respect broadly disseminated communication to the Company, in each case without the prior written consent holders of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, Common Stock or other group” as such terms are used in the rules of the SEC with respect to the Company or any voting securities of the Company;
(ie) request enter into any discussions, negotiations, agreements, arrangements or propose to the Board understandings with, or the Company (intentionally assist, advise or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlyencourage, any amendment or waiver of other Person with respect to any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require matter described in the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in foregoing clauses (a) through (ie) aboveof this Section 5.7;
(f) intentionally take any action that would reasonably be expected to cause or require the Company or such Värde Party or any of its Affiliates to make any public announcement or other public disclosure with respect to any of the matters described in this Section 5.7;
(g) intentionally publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 5.7; or
(kh) enter without limitation of Section 5.7(a), acquire or offer or agree to acquire, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), of any shares of Common Stock or other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into discussionsshares of Common Stock or other voting securities of the Company, negotiationsin each case, arrangements that would result in the Värde Parties and their Affiliates collectively owning, beneficially or agreements with any Person relating to otherwise, greater than 50% of the foregoing actions referred to in (a) through outstanding shares of Common Stock, other than (i) abovethe acquisition of the Exchanged Shares pursuant to this Agreement, (ii) the acquisition of the Underlying Shares upon any conversion of the Exchanged Series E Shares or upon payment of any dividends thereon, any increase of the liquidation preference or convertible amount with respect to the Preferred Stock or any adjustments to the conversion price or conversion ratio or (iv) receiving any shares of securities generally distributed by the Company or an acquirer or target of the Company to holders of Common Stock or Preferred Stock; provided, however, that nothing contained in this Section 2.1 shall prevent5.7 will limit (i) any Värde Party’s ability to vote or, restrictsubject to the other restrictions set forth herein and in the Certificates of Designation, encumberthe October Transaction Agreement and the Securities Purchase Agreement, transfer its Securities or limit in any manner: shares of Preferred Stock or Common Stock issued pursuant to the October Transaction Agreement or the Securities Purchase Agreement or otherwise exercise its rights under this Agreement, the Certificates of Designation, the October Transaction Agreement or the Securities Purchase Agreement, (Aii) the Investor or ability of any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement director designated by the Company after Värde Parties pursuant to this Agreement or the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its Certificates of Designation to vote, exercise his or her fiduciary duties as or otherwise fully participate as a member of the Board; Board of Directors, (iii) the ability of the Värde Parties to assert or protect their rights as a stockholder of the Company in the event of the commencement of any bankruptcy or similar proceeding or assignment for the benefit of creditors involving the Company or (Civ) the Investor ability of the Värde Parties to exercise their rights to appoint, remove or cause the resignation of directors pursuant to this Agreement and the Certificates of Designation. In the event that, prior to the Standstill Termination Date applicable to Section 5.7(i), any Värde Party or its Affiliate makes any acquisition of securities of the Company that is permitted under Section 5.7(i) (other an acquisition described in clauses (i)-(iv) of Section 5.7(i)), such Värde Party shall give (or shall cause its Affiliates Affiliate to give) notice to the Company of such acquisition, including the number and type of securities acquired, no later than the first Business Day after the date of such acquisition. Notwithstanding the foregoing, in the case of a Värde Party that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Värde Party’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Värde Party’s assets and barriers are in place to prevent such portfolio managers from exercising their respective rightsobtaining such knowledge, performing their respective obligations or otherwise consummating the transactions contemplated covenant set forth in Section 5.7(a) shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the securities covered by this Agreement, the October Transaction Agreement or the Securities Purchase Agreement; provided, Joint Venture Agreement, or that such assets managed by other managers not subject to such covenant does not exceed 1% of the Preferred Distributor Agreement, Common Stock then issued and outstanding. The parties agree that the covenants and other terms of Section 4.2 of the Securities Purchase Agreement are hereby superseded in each case, in accordance with their entirety from and after the terms hereof and thereofClosing by the foregoing provisions this Section 5.7.
Appears in 1 contract
Standstill. During Except for securities acquired pursuant to the exercise of an option to purchase common stock of the Company issued in connection with the Executive’s employment by the Company, neither the Executive nor any affiliates or representatives of the Executive (acting on behalf of or in concert with the Executive, any of the Executive’s affiliates or any of the Executive’s other representatives) will, at any time during the two (2) year period commencing on the Resignation Date (or, at any time during such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateassist, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5advise, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited act in concert or waived by the Company agreement or the Board, participate with or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly: (i) acquire or agree, acquire offer, seek or propose to acquire, by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, any ownership, including, but not limited to, beneficial ownership ownership, as defined in Rule 13d-3 under the Exchange Act, of Common Stock and/or Common Stock Equivalents and/or any instrument that gives of the Investor the economic equivalent of ownership of an amount of assets, businesses or securities of the Company or any direct or indirect subsidiary thereof, or any rights or options to acquire such ownership (a “Derivative”including from any third party); (ii) offer to enter into or propose any merger, exceptbusiness combination, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tenderrecapitalization, exchange restructuring or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of extraordinary transaction with the Company or propose any matter to be voted upon by direct or indirect subsidiary thereof; (iii) initiate any stockholder proposal or the stockholders convening of the Company, a stockholder’s meeting of or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of involving the Company or any direct or indirect subsidiary thereof; (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(eiv) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 14a-1 under the Exchange Act), whether or seek not such solicitation is exempt pursuant to advise or influence any PersonRule 14a-2 under the Exchange Act, with respect to voting any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any securities shares of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities capital stock of the Company or any Derivativesecurities convertible into, exchangeable for or exercisable for (in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any similar transaction involving communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act; (v) otherwise seek or propose to influence, advise, change or control the management, board of directors, governing instruments, affairs or policies of the Company or any direct or indirect subsidiary thereof; (iivi) enter into any recapitalizationdiscussions, restructuringnegotiations, liquidation agreements, arrangements or other extraordinary transaction understandings with any person with respect to the Company, in each case without the prior written consent of the Board (a transaction any matter described in the foregoing clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (gvi); or (vii) aboveother than as required by law, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingdisclosure, or take any action that could reasonably be expected to require the Executive or the Company to make a public announcement regardingdisclosure, a potential Business Combination or with respect to any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that other than as may be required by applicable law, order or regulation, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s Affiliates or agents or other persons acting on which the Investor (including SK ecoplant his or its behalf not to, and SPV) and will cause his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall respective Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called any meeting of the stockholders of the Company alone or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by in concert with any other Person individual or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldentity, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationby purchase, tender or offer, exchange offer, purchase of the Company’s assets agreement or businessesbusiness combination or any other manner, purchase beneficial ownership of any securities of the Company or any Derivative, or securities of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Affiliate of the Company, in each case without if, after completion of such acquisition or proposed acquisition, such party would beneficially own, or have the prior written consent right to acquire beneficial ownership of, more than 5.01% of the Board outstanding Common Stock (a transaction described in clauses (ibased on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”the Exchange Act);
(hb) act in concert with submit any Third Party shareholder proposal (pursuant to take Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any action in clauses notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(ac) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 3(d) hereof or acquired in the future (subject to the limitations set forth in Section 8(a)hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the 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 in 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 SEC nominees of the Board at any shareholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the 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 initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(f) effect or seek 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 cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries;
(g) 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 provisions of Section 7hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) publicly disparage any member of the Board or management of the Company, provided that this provision shall not apply to 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;
(i) request serve on the board of directors or propose to participate in the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver governance of any provision of this Section 2.1 (including this clause (i))Competitor;
(j) make engage in any public announcement regardingshort sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or take other similar right (including, without limitation, any action put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that could require includes, relates to or derives any significant part of its value from a decline in the Company to make a public announcement regarding, a potential Business Combination market price or any value of the matters set forth in clauses (a) through (i) above; orCompany’s securities;
(k) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(l) take or cause or induce or assist others to take any action inconsistent with any Person relating of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, prohibit ▇▇▇▇▇▇ or limit ▇▇▇▇▇▇▇ from engaging in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties lawful act in his capacity as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 1 contract
Standstill. During The Investor agrees that from the period date hereof and until one year following the date hereof (such period, the “Standstill TermPeriod”) commencing as ), it will not, and will also ensure that no member of the First Closing Date and continuing until Investor Group nor any Person acting on behalf of or in concert with the later of (i) the second (2nd) anniversary Investor nor any member of the Second Closing DateInvestor Group, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, will directly or indirectly, acquire beneficial without the prior written consent of the Company: (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of Common Stock and/or Common Stock Equivalents and/or of, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company or any of its Subsidiaries, or any warrant, option or other direct or indirect right to acquire any such securities that (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit taken together with all Shares and other voting securities held by the Investor from investing in a fund with respect Group) exceeds 19.9% of the then outstanding shares of Common Stock; (ii) enter, agree to which the Investor does not have enter, propose, seek or share decision-making authority over investment offer to enter into or divestment decisions;
(b) make a tenderfacilitate any merger, exchange business combination, recapitalization, restructuring or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of extraordinary transaction involving the Company or propose any matter to be voted upon by the stockholders of the Company, or its Subsidiaries; (iiiii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectlyinitiate, encourage, accept make, or support a tenderin any way participate or engage in, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities solicitation” of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (proxies” as such terms are defined used in Regulation 14A under the Exchange Act)proxy rules of the Commission to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of, any voting securities of such securities, including the granting Company; (iv) file with the Commission a proxy statement or any supplement thereof or any other soliciting material in respect of any proxy (other than the Company or its stockholders that would be required to be filed with the Commission pursuant to this Agreement);
Rule 14a-12 or other provisions of the Exchange Act; (gv) propose (i) except as set forth in Sections 6.3 or 6.4, nominate or recommend for nomination a Person for election at any merger, consolidation, business combination, tender or exchange offer, purchase stockholder meeting at which directors of the Company’s assets or businesses, purchase board of directors are to be elected; (vi) submit any securities of the Company or any Derivativestockholder proposal for consideration at, or bring any similar transaction involving the other business before, any Company or stockholder meeting; (iivii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any voting securities of the Company;
; (iix) call, request the calling of, or propose otherwise seek or assist in the calling of a special meeting of the stockholders of the Company; (x) otherwise act, alone or in concert with others, to seek to control or influence the Board management or the Company policies of the Company; (xi) disclose any intention, plan or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingarrangement prohibited by, or take any action that could require inconsistent with, the Company to make a public announcement regardingforegoing; or (xii) advise, a potential Business Combination assist or any of the matters set forth in clauses (a) through (i) above; or
(k) encourage or enter into any discussions, negotiations, agreements or arrangements or agreements with any Person relating to the foregoing actions referred to other Persons in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance connection with the terms hereof and thereofforegoing.
Appears in 1 contract
Standstill. During the period (such period, commencing on the “Standstill Term”) commencing as of the First Closing Date date hereof and continuing until ending on the later of (i) 24 months following the second (2nd) anniversary of the Second Closing Date, date hereof and (ii) the date on which the Investor ceases to have the Investor’s nomination right to designate a director to the Board ends pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding2.1(3), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of other Holder, as well as any Affiliate, in any manner whatsoever, alone or Acting Jointly or in Concert with another Person, will refrain from doing the following, except as approved, invited or waived by with the Company or prior written consent of the Board, or as contemplated by this AgreementCorporation:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, agree to acquire or make a proposal with a view to acquiring, directly or indirectly, acquire beneficial ownership Shares, property or assets of Common Stock and/or Common Stock Equivalents and/or the Corporation or any instrument of its subsidiaries, it being understood that gives an interest in the capital of a private or public investment fund that is not controlled by the Investor, any other Holder or an Affiliate and in the management and investment decisions of which the Investor, any other Holder or an Affiliate does not participate does not constitute a breach of the foregoing by the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany other Holder;
(b) make initiate a tendernon-exempt takeover bid under applicable Securities Laws for the Corporation or any of its subsidiaries, or execute a support or voting agreement with a bidder making such a takeover bid;
c) propose to enter or seek to enter into, directly or indirectly, a merger, consolidation, recapitalization, plan of arrangement, business combination, buyout proposal, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentssimilar transaction involving the Corporation or any of its subsidiaries;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly solicit proxies or indirectly, encourage, accept Act Jointly or support a tender, exchange or other offer or proposal by any other in Concert with another Person or group (an “Offeror”) for to vote the securities of the Company (if such offer Corporation or proposal would, if consummated, result in a Change any of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)its subsidiaries, or seek to advise or influence in any Person, with respect to way whatsoever anyone voting of any the securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (Corporation or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))subsidiaries;
(je) make call a meeting of Shareholders or submit a shareholder proposal at any public announcement regardingmeeting of Shareholders;
f) publicly declare any thought, intention or plan to do any of the foregoing, or take any action that could require as a result of which the Company Corporation is reasonably likely to be required to make a public announcement regarding, a potential Business Combination or with respect to any of the matters set forth foregoing;
g) Act Jointly or in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements Concert with any other Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or connection with any of its Affiliates from making confidentialthe foregoing; and
h) solicit, nonpublic proposals advise, assist or encourage any other Person to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member do any of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Standstill. During the period (such periodStandstill Period, the “Standstill Term”) commencing as neither GF Canco nor any member of the First Closing Date and continuing until GF Group shall, without the later prior written consent of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement▇▇▇▇▇▇▇:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, agree to acquire or make any proposal or offer to acquire, directly or indirectly, acquire ownership of (or control or direction over) any issued and outstanding Common Shares and/or any issued and outstanding securities convertible or exchangeable into Common Shares (a “Share Transaction”) if such Share Transaction would result in the GF Group collectively having, directly or indirectly, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or (or control or direction over) more than the Closing Ownership Interest; provided, however that nothing contained in this Agreement shall prohibit or restrict any instrument that gives the Investor the economic equivalent of ownership of an amount of securities member of the Company GF Group from (i) submitting any proposal or offer to the Board to acquire, directly or indirectly, all of the issued and outstanding Common Shares by way of a “Derivative”take-over bid (as defined under Canadian Securities Laws), exceptplan of arrangement, nothing in this Section 2.1(aamalgamation or other transaction, or (ii) shall prevent acquiring or prohibit agreeing to acquire, directly or indirectly, all of the Investor from investing in issued and outstanding Common Shares by way of a fund with respect to which take-over bid, plan of arrangement, amalgamation or other transaction that is supported by the Investor does not have or share decision-making authority over investment or divestment decisionsBoard;
(b) acquire, agree to acquire or make a tender, exchange any proposal or other public offer to acquire Common Stock and/or Common Stock Equivalentsacquire, directly or indirectly, ownership of (or control or direction over) any material property or assets of ▇▇▇▇▇▇▇, other than pursuant to any agreement entered into between any member of the GF Group and ▇▇▇▇▇▇▇ or any of its Affiliates;
(c) directly propose to ▇▇▇▇▇▇▇, the shareholders of ▇▇▇▇▇▇▇, the Board or indirectlyany other person, (i) or effect or seek to have called effect, any meeting of the stockholders of the Company amalgamation, merger, arrangement, business combination, reorganization or propose any matter restructuring or liquidation with respect to be voted upon ▇▇▇▇▇▇▇ (other than as permitted by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if anySection 5.1(a));
(d) directly solicit proxies from shareholders of ▇▇▇▇▇▇▇, or indirectlyform, encouragejoin, accept support or support participate in a tendergroup to solicit proxies from shareholders of ▇▇▇▇▇▇▇, exchange or other offer or proposal by for any other Person or group purpose (an “Offeror”) including, without limitation, for securities the purpose of replacing members of the Company (if such offer Board) or proposal would, if consummated, result in a Change otherwise attempt to influence the conduct of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)▇▇▇▇▇▇▇’▇ shareholders;
(e) directly or indirectlyassist, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence encourage any Person, with respect other person to voting of effect any securities of the Company;foregoing; or
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingwith respect to, or take any action that could require the Company to make a public announcement regardingin furtherance of, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsforegoing, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement except as may be required by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofApplicable Law.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Each Investor agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek submit any stockholder proposal (pursuant to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Rule 14a-8 promulgated by the stockholders Securities and Exchange Commission (the “SEC”) under the Exchange Act or otherwise) or any notice of the Companynomination or other business for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved (including by a majority way of the Board (excluding the Investor DesigneeRule 14a-11 of Regulation 14A), if any)other than as expressly permitted by this Agreement;
(dii) engage in, directly or indirectly, encourage, accept any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or support a tender, exchange written consents) or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock or grant a proxy with respect to the voting of the Common Stock or other voting securities to any securities person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(fiv) deposit vote for any securities nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(v) except as specifically provided in Section 1 and Section 2 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 Company Board or a change in the size or composition of the Board;
(vi) disclose publicly, or privately in a voting trust manner that could reasonably be expected to become public, any intention, plan or subject arrangement inconsistent with the foregoing;
(vii) take any securities of action challenging the Company to any arrangement validity or agreement with respect to the voting of such securities, including the granting enforceability of any proxy (other than pursuant to provisions of this AgreementSection 3(a);
(gviii) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of publicly request that the Company amend or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i3(a));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kix) enter into discussionsany agreement, negotiations, arrangements arrangement or agreements with understanding concerning any Person relating to of the foregoing actions referred (other than this Agreement) or encourage or solicit any person to in (a) through (i) aboveundertake any of the foregoing activities; provided, however, that nothing contained in this Section 2.1 3(a) or elsewhere in this Agreement shall prevent, restrict, encumber, or limit in any manner: prohibit (A) the any Investor from privately making any statement or any of its Affiliates from making confidential, nonpublic proposals expressing or disclosing such Investor’s views in private to the Board for a transaction involving a Business Combination following Chief Executive Officer, the public announcement by Chief Financial Officer or another other officer or director of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationCompany; or (B) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the Investor Designee from performing its duties election of directors of the Company and the other matters referenced in Section 2(a).
(b) As used in this Agreement:
(i) the term “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified with respect to the specific action at issue hereunder; the term “Associate” means any corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a member trustee or in a similar fiduciary capacity, and any relative or spouse of the Board; or (C) the Investor such person, or any relative of its Affiliates from exercising their respective rightssuch spouse, performing their respective obligations or otherwise consummating who has the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementsame home as such person, in each case, with respect to the specific action at issue hereunder; the term “control” shall have the meaning set forth in accordance with Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms hereof “beneficial owner” and thereof.“beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and
Appears in 1 contract
Sources: Investors Agreement (Iroquois Capital Management, LLC)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases For a period of two (2) years from the date of this Agreement, each Conversant Investor shall not, and purchases of Preemptive Right Sharesshall cause its Affiliates not to, directly or indirectly:
(i) acquire, offer to acquire beneficial ownership or agree or make a proposal to acquire Beneficial Ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)Equity Securities, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund any Derivative Instruments with respect to which Common Stock, or any indebtedness of the Investor does not have Company, except pursuant to share splits, reverse share splits, share dividends or share decision-making authority over investment distributions, or divestment decisionscombinations or any similar recapitalizations on or after the date hereof or the acquisition of common stock resulting from conversion of the Series A Preferred Stock;
(bii) make a tendereffect or seek, exchange offer or other public offer propose to acquire Common Stock and/or Common Stock Equivalents;
effect, or announce any intention to effect or cause or participate in (cA) directly or indirectly, (i) seek any shareholder proposal to have called any meeting of be considered by the stockholders of the Company or propose take any matter action to be voted upon by nominate any person for membership on the stockholders Board of Directors, or take any action to remove any director (other than the Investor Board Representative) from the Board of Directors of the Company, Company or (ii) propose or nominate for election to change the Board any person whose nomination has not been approved by a majority composition of the Board of Directors of the Company or (excluding the Investor DesigneeB) make, if any);
(d) or in any way participate in, directly or indirectly, encourageany “solicitation” of “proxies” to vote, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek to influence any Person with respect to the voting of, shares of Common Stock, or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, ) with respect to voting of any securities of Common Stock; provided that the Company;foregoing shall not restrict such Conversant Investor’s right to vote its Common Stock in its sole discretion; or
(fiii) deposit initiate or propose a call for any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase special meeting of the Company’s assets or businesses, purchase of any securities shareholders.
(b) The prohibition in Section 3(a)(i) shall not restrict (i) the ability of the Company Investor Board Representative to vote or any Derivativefrom otherwise exercising his or her fiduciary duties, or any similar transaction involving the Company or (ii) any recapitalizationeach Conversant Investor’s ability to vote, restructuringTransfer, liquidation convert or other extraordinary transaction with respect otherwise exercise rights under its shares of Series A Preferred Stock subject to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective express obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhereof.
Appears in 1 contract
Standstill. During Until completion of the period 2015 Annual Meeting, no member of the Standard General Group or any of its Affiliates (such periodas to the Standard General parties, Affiliates that are directly or indirectly controlled by ▇▇▇▇▇▇▇▇ ▇▇▇ or his successor as Chief Executive Officer of Standard General (the “Standstill TermControlled Affiliates”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares)), directly or indirectly, acquire beneficial ownership shall:
(i) solicit proxies or written consents of holders of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (or become a “Derivative”)participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any other person in any “solicitation” of any proxy, except, nothing in this Section 2.1(aconsent or other authority (as such terms are defined under the Exchange Act) shall prevent or prohibit the Investor from investing in a fund with respect to which any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Investor does not have Board’s recommendation in connection with such matter) (for the avoidance of doubt, excluding such activities among members of the Standard General Group and their Controlled Affiliates); or share decision-making (ii) encourage any other person to solicit or withhold any proxy, consent or other authority over investment with respect to any shares of Common Stock or divestment decisionsotherwise advise, encourage or influence any other person with respect to voting any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Board’s recommendation in connection with such matter);
(b) make form or join in a tenderpartnership, exchange limited partnership, syndicate or other public offer group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to acquire the Common Stock and/or Common Stock Equivalents(for the avoidance of doubt, excluding any group composed solely of members of the Standard General Group and their Controlled Affiliates) or otherwise support or participate in any effort by any third party with respect to the matters set forth in clause (a) above;
(c) directly present at any Special Meeting of Stockholders or indirectly, (i) through action by written consent any proposal for consideration for action by stockholders or seek to have called the removal of any meeting member of the stockholders of the Company Board or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate nominee for election to the Board any person whose nomination has not been approved by a majority of or seek representation on the Board (excluding the Investor Designee, if anyactions of any Standard General Designee taken in his or her capacity as a member of the Board);
(d) directly or indirectlygrant any proxy, encourage, accept or support a tender, exchange consent or other offer authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any Special Meeting of Stockholders) or proposal by deposit any shares of Common Stock in a voting trust or subject them to a voting agreement or other Person arrangement of similar effect with respect to any Special Meeting (except as provided in Section 4 below or group (an “Offeror”) for securities as among members of the Company Standard General Group and their Controlled Affiliates) or action by written consent (if such offer or proposal wouldexcluding customary brokerage accounts, if consummatedmargin accounts, result in a Change of Control of prime brokerage accounts and the Company, such offer or proposal is referred to as an “Acquisition Proposal”like);
(e) directly without the prior approval of a majority of the members of the Board who are not Standard General Designees, separately or indirectlyin conjunction with any other person or entity in which it is or proposes to be either a principal, solicit proxies partner or consents or financing source, publicly propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)participate in, effect or seek to advise effect, any extraordinary corporate transaction, tender offer or influence exchange offer, merger, acquisition, reorganization, restructuring, recapitalization, change in the Company’s dividend policy, change in the Company’s Amended and Restated Certificate of Incorporation or the Company Bylaws (other than as contemplated by this Agreement), business combination involving the Company or a material amount of the assets or businesses of the Company or any Person, with respect action which would result in a class of securities of the Company being delisted from a national securities exchange or to voting ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association or becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act or encourage any other person in any such activity (excluding the actions of any securities Standard General Designee taken in his or her capacity as a member of the Board). Notwithstanding the foregoing, the Company agrees that the Standard General Group shall not be deemed to be in breach of this Agreement in the event that a Standard General Designee receives an unsolicited inquiry regarding a potential transaction proposed by a third party, does not engage in any negotiations or substantive discussions without the prior approval of the Board (including by a majority of the members who are not Standard General Designees) and promptly apprises the Company’s lead independent director of the foregoing if required by his or her fiduciary duties to the Company;
(f) deposit purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities shares of Common Stock (other than in connection with a stock split, dividend or similar transaction); provided, however, that any Common Stock (i) received by Standard General Designees as equity grants in connection with their service as directors or officers of the Company or (ii) acquired by Charney in a voting trust or subject any securities connection with his anti-dilution agreement (in the form in effect as of the Company date hereof and without amendments thereto) shall not be deemed to any arrangement or agreement be beneficially owned by the Standard General Group under this clause (f); provided further, that the consummation of the agreements and arrangements contemplated by the June 25, 2014 Letter Agreement among certain members of the Standard General Group (in the form filed by Charney on June 27, 2014 with respect the SEC and without amendments thereto, the “Letter Agreement”) shall not be deemed to the voting of such securities, including the granting of any proxy violate this clause (other than pursuant to this Agreementf);
(g) propose (i) disclose any mergerintention, consolidation, business combination, tender plan or exchange offer, purchase of arrangement inconsistent with the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)foregoing;
(h) instigate, encourage, join, act in concert with or assist any Third Party third party to take do any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyforegoing;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (i) abovethis Section 3; or
(kj) enter into discussions, negotiations, arrangements request that the Company or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Board or any of its Affiliates from making confidential, nonpublic proposals to their respective representatives amend or waive any provision of this Section 3 (including this sentence) or for the Board for a transaction involving a Business Combination following to specifically invite any member of the public announcement Standard General Group to take any of the actions prohibited by this Section 3. The foregoing provisions of this Section 3 shall not be deemed to prohibit the transfer of shares of Common Stock beneficially owned by any member of the Standard General Group to any of its Affiliates, provided that such Affiliate agrees to be bound by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties terms and conditions of this Agreement as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofStandard General Group.
Appears in 1 contract
Sources: Nomination, Standstill and Support Agreement (American Apparel, Inc)
Standstill. During (a) The Investor agrees that from the period (such period, the “Standstill Term”) commencing as signing of the First Closing Date and continuing this Agreement until the earlier of (A) six months after the later of (x) the first day on which no Investor Director Designee serves on the Board and (y) the earlier of (i) the second (2nd) anniversary Fall-Away of the Second Closing Date, Investor Board Rights and (ii) the date on which the Investor ceases to have the right to designate has expressly irrevocably waived its rights under Section 4.07; (B) a director to the Board pursuant to Section 5, Company Change of Control; and (iiiC) the date on which CFIUS Cure Failure, without the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesInvestor will not, directly or indirectly, and will cause its Affiliates not to, directly or indirectly:
(i) acquire, offer or seek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities or direct or indirect rights to acquire any securities of the Company (a “Derivative”)or any of its Subsidiaries, exceptany securities convertible into or exchangeable or exercisable for any such securities, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange any options or other public offer derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or any assets or property of the Company or any Subsidiary of the Company, but in any case excluding any issuance by the Company of shares of Common Stock or options, warrants or other rights to acquire Common Stock and/or (or the exercise thereof) (x) pursuant to any stock dividend or distribution, stock split or other recapitalization or reclassification of the Common Stock Equivalentsor pursuant to any shareholder rights plan or similar plan, or (y) to the Investor Director Designee as compensation for his or her membership on the Board (including any shares of Common Stock acquired upon exercise of any options granted to the Investor Director Designee); provided that this clause (i) shall not limit Investor or its Affiliates from acquiring, offering or seeking to acquire, agreeing to acquire or making a proposal to acquire Common Stock to the extent that, upon consummation of any such transaction, the Investor Parties would collectively beneficially own shares of Common Stock in an amount not to exceed 10.0% in the aggregate of the then-outstanding shares of Common Stock, plus any shares of Common Stock (or options or other rights to acquire such shares) awarded by the Company to any Investor Director Designee;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose make or nominate for election in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or seek to advise or influence any Person, Person with respect to voting of, any voting securities of the Company or any of its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to or to place a representative on the Board, or seek the removal of any securities director from the Board (other than as expressly set forth in Section 4.07 with respect to an Investor Director Designee);
(iii) demand a copy of the stock ledger list of stockholders or any other books and records of the Company;
(fiv) deposit make any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement public announcement with respect to the voting of such securitiesto, including the granting of any proxy or offer, seek, propose or indicate an interest in (other than pursuant to this Agreementin each case with or without conditions);
(g) propose (i) , any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the Company’s assets assets, properties or businesses, purchase of any securities of the Company or any DerivativeSubsidiary of the Company, or any similar other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Companyexcluding, in each case without compliance with Section 4.02, the prior written consent announcement of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controltransactions contemplated by this Agreement, is referred to as a “Business Combination”the Joint Venture Agreement or the License Agreement);
(hv) act otherwise act, alone or in concert with any Third Party others, other than the Investor Director Designee in its capacity as such, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnershipthe management, syndicate, board of directors or other group” as such terms are used in the rules policies of the SEC with respect to the Company or any securities of the Companyits Subsidiaries;
(ivi) request make any proposal or propose to the Board statement of inquiry or the Company (disclose any intention, plan or arrangement inconsistent with any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))the foregoing;
(jvii) make advise, assist, knowingly encourage or direct any public announcement regardingPerson to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;
(viii) take any action that could would require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (i) above; orthis Section 4.05(a);
(kix) enter into any discussions, negotiations, arrangements or agreements understandings (written or oral) with any Person relating third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, any Affiliate of Investor or the Investor Director Designee) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a group with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(x) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 4.05(a), provided that this clause shall not prohibit Investor from making a confidential request to the foregoing actions referred Company seeking an amendment or waiver of the provisions of this Section 4.05, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(xi) contest the validity of this Section 4.05 or make, initiate, take or participate in any demand, Proceeding (legal or otherwise) or proposal to in (a) through (i) aboveamend, waive or terminate any provision of this Section 4.05; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 4.05 will limit in any manner: (A) the Investor Investor’s (or any of its Affiliates from making confidential, nonpublic proposals Affiliates’) ability to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationvote or Transfer (subject to Section 4.05(b)) its Common Stock; or (B) the ability of the Investor Director Designee from performing its to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
(b) This Section 4.05 shall immediately be suspended if: (i) the Company enters into a definitive agreement; (ii) any Person or group shall have commenced and not withdrawn a bona fide public tender or exchange offer and the Board has not recommended that the shareholders of the Company reject such offer within the time period contemplated by Rule 14e-3 under the Exchange Act, in the case of clause (a)(iv) only; or (Ciii) any Person or group shall have commenced and not withdrawn the solicitation of proxies for the election of a majority of the members of the Board, in the case of clause (a)(ii) only, in each case, the consummation of which would result in a Company Change of Control, and this Section 4.05 will be reinstated if such definitive agreement has been irrevocably terminated, such tender offer or exchange offer is irrevocably withdrawn or terminated or such solicitation is irrevocably terminated, respectively, in each case unless Investor or any of its Affiliates from exercising their respective rightsSubsidiaries has publicly proposed a bona fide offer for a Company Change of Control prior to such termination, performing their respective obligations but only for so long as such proposal by Investor or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, its Subsidiaries has not been withdrawn or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofterminated.
Appears in 1 contract
Standstill. (a) During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date each ▇▇▇▇▇▇ Party shall not, and continuing until the later of shall cause his or its Representatives not to, directly or indirectly:
(i) seek, alone or in concert with others, (A) to call a meeting of stockholders, (B) representation on the second (2nd) anniversary Board, except as specifically contemplated in the Recitals above and in Section 3 of this Agreement, provided that ▇▇▇▇▇▇ may, in his capacity as a member of the Second Closing DateBoard, discuss matters of Board representation on a confidential basis with members of the Board during meetings of the Board or the Special Committee, or (C) the removal of any member of the Board;
(ii) the date on which the Investor ceases to have the right to designate a director solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Board pursuant to Section 5shares of the Common Stock, and (iii) or from the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of Common Stock then issued and outstandingStock, the Investor or become a “participant” (including SK ecoplant and the SPV) and its Subsidiaries shall not do any as such term is defined in Instruction 3 to Item 4 of the following, except as approved, invited Schedule 14A promulgated under the Exchange Act) in or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectlyassist, encourage, accept advise or support a tenderany Third Party in any “solicitation” of any proxy, exchange consent or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation authority (as such terms are defined in Regulation 14A under the Exchange Act), or seek ) to advise or influence vote any Person, with respect to voting shares of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy Common Stock (other than pursuant to this Agreementany encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(giii) propose (iA) form or join in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any mergershares of Common Stock (for the avoidance of doubt, consolidationexcluding any group composed solely of the ▇▇▇▇▇▇ Parties and their Affiliates), business combination(B) grant any proxy, tender consent or exchange offer, purchase of other authority to vote with respect to any matters to be voted on by the Company’s assets stockholders (other than to the ▇▇▇▇▇▇ Parties and their Affiliates and the named proxies included in the Company’s proxy card for any annual meeting or businesses, purchase special meeting of stockholders) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of the Company Common Stock in any voting trust or any Derivative, or any similar transaction involving the Company or arrangement (iiother than (x) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the ▇▇▇▇▇▇ Parties and their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case without the prior written consent case, of the Board (a transaction described in clauses (i) ▇▇▇▇▇▇ Parties and (ii) that would result in a Change of Control, is referred to as a “Business Combination”their Affiliates);
(hiv) act in concert with execute any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in written consent as a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC stockholder with respect to the Company or its Common Stock, except as is approved by the Board or otherwise permitted by this Agreement;
(v) without the approval of the Board, separately or in conjunction with any securities Third Party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly (including in communications to the media) propose, encourage or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other similar business transaction involving the Company or a material amount of the assets or businesses of the Company or actively encourage, initiate or support any other Third Party in any such activity; provided that the ▇▇▇▇▇▇ Parties shall be permitted to sell or tender their shares of Common Stock or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction;
(vi) without the approval of the Board, present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(ivii) make any request for stockholder list materials or propose other books and records of the Company under Section 220 of the Delaware General Corporation Law or make any request pursuant to Rule 14a-7 under the Exchange Act or otherwise, except as is reasonably necessary to enable the ▇▇▇▇▇▇ Parties to effect a tender offer or exchange offer permitted under Section 1(a)(v), provided, that this Section 1(a)(vii) shall not be applicable if ▇▇▇▇▇▇ resigns from the Board while there is a material breach by the Company of this Agreement;
(viii) comment publicly (including in communications to the Board media) concerning the Company’s management, policies, strategy, operations, financial results or affairs or any transactions involving the Company (or any of its subsidiaries;
(ix) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, directorspartners, Affiliates members, employees, attorneys, accountants, financial advisors and other professional representatives)agents or Affiliates of the Company, directly or indirectly, any amendment amend or waiver of waive any provision of this Section 2.1 Agreement (including this clause (iSection 1(a)(ix));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kx) enter into discussionstake any action which could have the effect of encouraging, negotiationsassisting or influencing other stockholders of the Company or any other persons to engage in actions which, arrangements or agreements with any Person relating if taken by such Party, would violate this Agreement.
(b) Notwithstanding anything to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contrary contained in this Section 2.1 ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the ▇▇▇▇▇▇ Parties nor their respective Affiliates shall prevent, restrict, encumber, be prohibited or limit in any manner: restricted from:
(A) taking any action, or engaging in any communication in furtherance of the Investor or any rights and responsibilities of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties ▇▇▇▇▇▇ as a member of the Board; ;
(B) communicating privately with the Board or any officer or director of the Company, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the ▇▇▇▇▇▇ Parties or their respective Affiliates, the Company or its Affiliates or any Third Party, subject in any case to confidentiality policies of the Board, any confidentiality obligations to the Company of any such director or officer and applicable law, rules or regulations;
(C) the Investor taking any action necessary to comply with any law, rule or regulation or any of its Affiliates from exercising their respective rights, performing their respective obligations action required by any governmental or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreementregulatory authority or stock exchange that has, or the Preferred Distributor Agreementmay have, in each case, in accordance jurisdiction over any ▇▇▇▇▇▇ Party; or
(D) responding to or complying with the terms hereof and thereofa validly issued legal process.
Appears in 1 contract
Standstill. During The Stockholder agrees that from and after the period (such perioddate of this Agreement, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later to occur of (i) the second (2nd) anniversary of the Second Closing Date, (ii1) the date on which the Investor Registrable Common Stock Beneficially Owned by the Stockholder and its Affiliates ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less constitute greater than five percent (5.0%) 3% of the issued and outstanding shares of Common Stock then issued (after giving effect the conversion by the Stockholder and outstandingits Affiliates of any shares of Convertible Preferred Stock owned, the Investor (including SK ecoplant and the SPVdirectly or indirectly, by such Persons) and its Subsidiaries shall not do any (2) the tenth anniversary of the followingClosing Date, except as approvedit will not, invited or waived by and it will cause its Affiliates not to, without the Company or prior written consent of the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acquire whether through market purchases, tender or exchange offer or otherwise, record or beneficial ownership of, or the right to vote, (i) more than 3% of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of outstanding voting securities of the Company or direct or indirect rights to acquire more than 3% of the outstanding voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person, or (a “Derivative”)ii) more than 14.9% of the outstanding capital stock of the Company or direct or indirect rights to acquire more than 14.9% of the outstanding common stock of the Company or any subsidiary thereof, exceptor of any successor to or person in control of the Company, nothing in this Section 2.1(a) shall prevent or prohibit any assets of the Investor from investing in a fund with respect to which the Investor does not have Company or share decision-making authority over investment any subsidiary or divestment decisionsdivision thereof or of any such successor or controlling person;
(b) make a tenderor in any way participate, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, person or entity with respect to the voting of any voting securities of the Company;
(c) other than as contemplated by the Transaction Agreement, propose or seek to effect a merger, consolidation, recapitalization, reorganization, restructuring, sale, lease, exchange or other disposition of all or substantially all of the assets of or other business combination involving, or a tender or exchange offer for securities of, the Company or any of its subsidiaries or any material portion of the Company’s or such subsidiary’s business or assets or any other type of transaction that would result in a change in control of the Company;
(d) other than as contemplated by the Transaction 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 Company or any of its securities or assets;
(e) seek to exercise any control or influence over the management of the Company or its board of directors or any of the businesses, operations or policies of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in Regulation 13D-G under the rules Exchange Act, in connection with any of the SEC with respect to the Company or any securities of foregoing; or
(g) request the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 (including this clause (i));paragraph.
(jh) make any public announcement regardingNotwithstanding anything to the contrary in this Section 16, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through nothing shall (i) aboverestrict sales of Common Stock by any Affiliate or subsidiary of the Stockholder as nominee of customers or in connection with banking, brokerage or asset management activities in the ordinary course of business, (ii) prevent or restrict acquisitions of a previously unaffiliated business or entity that owns securities of the Company; or
(kiii) enter into discussions, negotiations, arrangements prevent the increase of the Stockholder’s Beneficial Ownership of securities of the Company above 3% or agreements with any Person relating more of securities of the Company then outstanding as a result of a reduction in the number of securities of the Company outstanding due to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any repurchase of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement securities by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the BoardCompany; or (Civ) prevent an inadvertent increase of the Investor Stockholder’s Beneficial Ownership of securities of the Company above 3% or any more of its Affiliates from exercising their respective rightsthe securities of the Company then outstanding, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementprovided, that, the Purchase AgreementStockholder, Joint Venture Agreementafter becoming aware of such inadvertent increase and upon the written request of the Company, or sells such securities of the Preferred Distributor Agreement, in each case, in accordance with Company as necessary to reduce the terms hereof and thereofStockholder’s Beneficial Ownership of securities of the Company below 3% within ten (10) business days of such request.
Appears in 1 contract
Sources: Registration and Investor Rights Agreement (Legg Mason Inc)
Standstill. During The Purchasers agree that during the period (such periodapplicable Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, the Purchasers will not, directly or as contemplated by this Agreementindirectly, and will cause its Affiliates not to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities or direct or indirect rights to acquire any equity securities of the Company or any of its Affiliates, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) to any Purchaser Director (A) as compensation for their membership on the Board or (B) as a “Derivative”result of a dividend payment on, or the conversion of, the Series A Preferred Stock pursuant to the provisions of the Certificate of Designations), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
in any way encourage or participate in any “solicitation” of “proxies” (c) directly whether or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in a voting trust or subject any securities of its Subsidiaries (excluding any votes required for the approval of the Company Transactions), or call or seek to call a meeting of the Company’s stockholders or initiate any arrangement stockholder proposal for action by the Company’s stockholders, or agreement other than with respect to the voting of such securitiesPurchaser Director, including seek election to or to place a representative on the granting Board or seek the removal of any proxy (other than pursuant to this Agreement)director from the Board;
(gc) [Reserved];
(d) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets of the Company and its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing; provided that the Purchasers may make confidential proposals to the Board of Directors of the Company regarding mergers, consolidations or other business combinations with the Company or a purchase of all or substantially all of the Company’s assets so long as such proposals would not reasonably be expected to require any public disclosure by the Company;
(e) otherwise act, alone or businessesin concert with others, purchase to seek to control or influence, in any manner, management or the board of any securities directors of the Company or any Derivativeof its Subsidiaries (other than in the capacity of the Purchaser Director);
(f) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(g) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any similar transaction involving the Company or (ii) other Person to do, any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)foregoing;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would, in effect, require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses (a) through this Section 5.07;
(i) aboveenter into any discussions, negotiations, arrangements or understandings with any third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(j) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(k) enter into discussionscontest the validity of this Section 5.07 or make, negotiationsinitiate, arrangements take or agreements with participate in any Person relating demand, Action (legal or otherwise) or proposal to the foregoing actions referred to in (a) through (i) aboveamend, waive or terminate any provision of this Section 5.07; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.07 will limit in any manner: (A1) the Investor Purchaser Parties’ ability to vote (subject to Section 5.10), Transfer (subject to Section 5.08), convert (subject to Section 6 of the Certificate of Designations) or any of otherwise exercise rights under its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; Common Stock or Series A Preferred Stock or (B2) the Investor Designee from performing its ability of any Purchaser Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During If this Agreement is terminated, then, for two years after the period (date of such periodtermination, the “Standstill Term”) commencing as IP and each of the First Closing Date its successors or assigns will not, and continuing until the later of will cause its Affiliates not to:
(i) the second (2nd) anniversary of the Second Closing Dateacquire, (ii) the date on which the Investor ceases offer or propose or otherwise seek to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardacquire, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesagree to acquire, directly or indirectly, acquire by merger, purchase or otherwise, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent assets or in excess of ownership 1% of an amount any class of securities of the Company UCC or its Affiliates or any direct rights or options to acquire (a “Derivative”)through purchase, exceptexchange, nothing conversion or otherwise) any assets or in this Section 2.1(a) shall prevent excess of 1% of any class of securities of UCC or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsits Affiliates;
(bii) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate in, directly or indirectly, (i) seek to have called any meeting "solicitation" of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation "proxies" (as such terms are defined in Rule 14a-1 of Regulation 14A under promulgated by the Exchange ActSEC as of the date hereof, disregarding clause (iv) of Rule 14a-1(1)(2), but including any solicitation exempted pursuant to Rule 14a-2(b)
(1) to vote (including by the execution of actions by written consent), or seek to advise advise, encourage or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of, any voting securities of such securitiesUCC;
(iii) call, including the granting or in any way participate in a call for, any meeting of shareholders of UCC (or take any proxy (other than pursuant action with respect to this Agreementshareholders acting by written consent);
(giv) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to any voting securities of UCC; or
(v) otherwise act to control or influence, or seek to control or influence, UCC or the Company management, Board of Directors, policies or affairs of UCC, including without limitation, (A) making any offer or proposal to acquire any securities or assets of the Company;
(i) request or propose to the Board or the Company (UCC or any of its officersAffiliates or soliciting or proposing to effect or negotiate any form of business combination, restructuring, recapitalization or other extraordinary transaction involving UCC, its Affiliates or any of their respective securities or assets, (B) seeking board representation or the removal of any directors or a change in the composition or size of the Board of Directors of UCC, (C) making any request to amend or waive any provision of this Section 8.09, (D) disclosing any intent, purpose, plan or proposal with respect to matters covered by this Section 8.09 or UCC, its Affiliates or the boards of directors, management, policies or affairs or securities or assets of UCC or its Affiliates employeesthat is inconsistent with this Section 8.09, attorneysincluding an intent, accountantspurpose, financial advisors and other professional representatives)plan or proposal that is conditioned on, directly or indirectlywould require, any amendment waiver, amendment, nullification or waiver invalidation of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding8.09, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination UCC or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with its Affiliates to make any Person public disclosure relating to any such intent, purpose, plan, proposal or condition, or (E) assisting, advising or encouraging any person with respect to, or seeking to do, any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 8.09 shall preventnot apply if UCC does not pay any portion of the Termination Fee when due or if IP terminates this Agreement as a result of a willful breach of this Agreement by UCC; provided, restrictfurther, encumberthat, if this Section 8.09 is effective against IP (and each of its successors and their respective Affiliates) during any such two-year period after the date of any such termination, and either (x) UCC shall have entered into an agreement with respect to any transaction that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of either the voting securities of UCC then outstanding or limit the assets of UCC and the UCC Subsidiaries, taken as a whole or (y) any Person or "group" (as defined in any manner: Section 13(d)(3) of the Exchange Act) (A) the Investor other than UCC or any of its Affiliates from making confidential(excluding, nonpublic proposals for this purpose, UCC's management acting independently of UCC)) shall have commenced any tender or exchange offer that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of the voting securities of UCC then outstanding which offer is recommended by UCC's Board of Directors to its shareholders, then at the Board for a transaction involving a Business Combination following time of the public announcement by the Company after the Second Closing Date that it has entered into a definitive of such agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member or of the Board; commencement of such offer, as applicable, this Section 8.09 shall terminate and have no further force or (C) effect and there shall be no rights, liabilities or obligations under this Section 8.09 on the Investor part of IP, UCC, MergerSub, or any of its Affiliates from exercising their respective rightsofficers, performing their respective obligations directors, shareholders, agents or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofAffiliates.
Appears in 1 contract
Sources: Merger Agreement (Union Camp Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary members of the Second Closing DateShareholder Group agrees that, (ii) during the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Standstill Period, he or it will not, and (iii) the date he or it will cause each of such person's Affiliates or agents or other persons acting on which the Investor (including SK ecoplant his or its behalf not to, and SPV) and will cause his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall respective Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called any meeting of the stockholders of the Company alone or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by in concert with any other Person individual or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldentity, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationby purchase, tender or offer, exchange offer, purchase of the Company’s assets agreement or businessesbusiness combination or any other manner, purchase beneficial ownership of any securities of the Company or any Derivativesecurities of any Affiliate of the Company, if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than 14.99% of the outstanding shares of Common Stock;
(b) 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, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) 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 transaction arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) 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 the 2012 Annual Meeting as set forth in this Agreement;
(e) seek, in any capacity, to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the 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 initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(f) effect or seek to effect, in any capacity (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (iiiii) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyCompany or any of its subsidiaries;
(g) publicly disclose, in each case or cause or facilitate the public disclosure (including without limitation the prior written consent filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the Board 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 provisions of Section 4(d) or this Section 5, or otherwise seek (a transaction described in clauses (i) and (ii) any manner that would result in a Change require public disclosure by any of Controlthe members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, is referred to as a “Business Combination”)consent under, or amendment of, any provision of this Agreement;
(h) act in concert with publicly disparage any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules member of the SEC with respect to the Company Board or any securities management of the Company; provided that this provision shall not apply to 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;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit the Shareholder Group from (i) above; or
making public statements (kincluding statements contemplated by Rule 14a-1 (1) enter into discussions(2) (iv) under the Exchange Act), negotiations, arrangements (ii) engaging in discussion with other stockholders or agreements with any Person relating to the foregoing actions referred to in (aiii) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumbersoliciting, or limit encouraging or participating in the solicitation of, proxies or consents with respect to voting securities of the Company (so long as such discussions are in compliance with Section 5(c) hereof) in each case with respect to any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement that has been publicly announced by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B1) the Investor Designee from performing its duties as a member recapitalization of the Board; Company, (2) an acquisition, disposition or sale of assets or a business by the Company where the consideration to be received or paid in such transaction requires approval by the holders of the Common Stock or (C3) a change of control of the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 1 contract
Standstill. During For a period of five (5) years from the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to as such term is defined in Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%2(a)(i) of the shares of Common Stock then issued Purchase Agreement), LDC shall not, and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do permit any of the followingits Affiliates to, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting without the prior written consent of the stockholders Company, by purchase or otherwise, acquire, agree to acquire or offer to acquire beneficial ownership of any voting securities of the Company or propose direct or indirect rights or options to acquire such beneficial ownership (including, without limitation, any matter voting trust certificates representing such securities) if such acquisition would result in the aggregate beneficial ownership by LDC and all Affiliates of LDC of voting securities having voting power equal to be voted upon by or in excess of fifteen percent (15%) of the stockholders then aggregate voting power of the Company, or (ii) enter, propose to enter into, solicit or nominate for election support any merger or business combination or change of control or other similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the Board purchase or acquisition of any person whose nomination has not been approved by a majority portion of the Board (excluding the Investor Designee, if any);
(d) directly business or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities assets of the Company or any of its subsidiaries other than in the ordinary course of business, (if such offer iii) initiate or proposal would, if consummated, result in propose any matter for submission to a Change of Control vote of the Companyshareholders of the Company or make, such offer or proposal is referred to as an in any way participate in, any “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation solicitation” of “proxies” (as such terms are defined used in Regulation 14A the proxy rules promulgated by the Commission under the Exchange Act)) to vote, or seek to advise or influence any Person, person with respect to the voting of of, the Common Stock or any other voting securities of the Company;
Company or request or take any action to obtain any list of shareholders of the Company for such purposes, (fiv) form, join or in any way participate in any group (other than a group composed solely of LDC and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to the Common Stock or any other voting securities of the Company that would be required under Section 13(d) of the Exchange Act to file a Schedule 13D with respect to such voting securities, (v) deposit any shares of Common Stock or any other voting securities of the Company in a voting trust or subject enter into any securities voting agreement or arrangement with respect thereto, (vi) seek representation on the Board (other than as contemplated by Section 7(b) of the Stock Purchase Agreement), the removal of any directors from the Board or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 3.2, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of the foregoing, (x) assist, advise, encourage or negotiate with any person with respect to, or seek to do, any of the foregoing or (xi) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company. Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its Affiliates from responding to any inquiries from any stockholders of the Company as to LDC’s or any arrangement or agreement such Affiliate’s intention with respect to the voting of such securities, including the granting shares of Common Stock or any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company beneficially owned by LDC or such Affiliate so long as such response is consistent with the terms of this Agreement, (ii) prohibit the purchase or other acquisition of beneficial ownership of Common Stock or other voting securities of the Company in compliance with Section 3.2(i) or (iii) restrict the right of any Derivative, or director on the Board designated by LDC as contemplated by Section 7(b) of the Stock Purchase Agreement to vote on any similar transaction involving matter as such designee believes appropriate in light of his duties as a director of the Company or (ii) any recapitalization, restructuring, liquidation the manner in which such designee may participate in his capacity as a director of the Company in deliberations or other extraordinary transaction with respect to the Company, in each case without the prior written consent discussions at meetings of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and committee thereof.
Appears in 1 contract
Standstill. During From and after the date of this Agreement and for a period (such periodof five years, the “Standstill Term”) commencing as none of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do Shareholders nor any of the followingtheir Related Persons, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementshall:
(a) solicit proxies or be or become a member of a group which solicits proxies (as used herein, the term "proxy" shall have the meaning provided in Regulation 14A promulgated by the Securities and Exchange Commission under the Exchange Act) for the purpose of (i) removing from office, or nominating or voting for a candidate to run in opposition to, any person who is serving as a director of UNIT at the date of this Agreement or any person who may hereafter be elected to the board of directors of UNIT as a result of the nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement, or (ii) vote against or otherwise opposing any matter which has been proposed or recommended by the board of directors of UNIT which is then comprised of persons at least a majority of which are persons serving as directors of UNIT at the date of this Agreement and any persons who may hereafter be elected to the board of directors of UNIT based upon the nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement; or
(b) permit any entity under his, her or its control (including but not limited to subsidiaries and employee pension, profit sharing or other than Permitted Purchases and purchases of Preemptive Right Sharestrusts under his, her or its investment management control) to acquire or offer to acquire or agree to acquire, directly or indirectly, acquire beneficial ownership of by purchase or otherwise, any UNIT Common Stock and/or or any option to purchase UNIT Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;Stock; or
(c) directly acquire or indirectly, (i) seek offer to have called any meeting of the stockholders of the Company acquire or propose any matter agree to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, oracquire, directly or indirectly, form, by purchase or otherwise shares of UNIT Common Stock or any option to purchase UNIT Common Stock by any Person; or
(d) finance or arrange the financing or participate in the financing of the acquisition of UNIT Common Stock by any Person; or
(e) join or in permit any way participate in Related Person of its to join a “partnership, limited partnership, syndicate, or other group” as such terms are used in group for the rules purpose of acquiring or holding of UNIT Common Stock within the meaning of Section 13(d) of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveExchange Act; or
(kf) enter into discussionsinitiate, negotiationspropose or otherwise solicit shareholders for any matter at any time, arrangements or agreements induce or attempt to induce any other Person to initiate any stockholder proposal or a tender offer for shares of UNIT Common Stock or any change of control of UNIT, or for the purpose of convening a stockholders' meeting of UNIT; or
(g) other than in connection with the Contemplated Transaction, acquire or permit any Person relating entity under his, her or its control (including but not limited to subsidiaries and employee pension, profit sharing or other trusts under his, her or its investment management control) to acquire, by purchase or otherwise, more than 5% of any class of equity securities of any entity which, prior to the foregoing actions referred to in (a) through (i) above; providedtime such entity acquires more than 5% of such class, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumberis the beneficial owner of, or limit in any manner: (A) the Investor or any intends to acquire more than 5% of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationUNIT Common Stock; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.or
Appears in 1 contract
Sources: Merger Agreement (Unit Corp)
Standstill. During the period from the date of this Agreement until the expiration of the Lock-Up Period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date), (ii) the date on which neither the Investor ceases to have nor any of its Affiliates (collectively, the right to designate a director to the Board pursuant to Section 5, “Standstill Parties”) shall (and (iii) the date on which the Investor (including SK ecoplant and SPV) and shall cause its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall Affiliates not do any of the followingto), except as approved, expressly approved or invited or waived in writing by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership (as determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act) of shares of Common Stock and/or or any securities convertible or exchangeable into Common Stock Equivalents and/or (excluding any instrument that gives shares of Common Stock acquired pursuant to the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”Transaction Agreements), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire shares of Common Stock and/or or any securities convertible or exchangeable into Common Stock EquivalentsStock;
(cb) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Company’s Board of Directors any person whose nomination has not been approved by a majority of the Company’s Board (excluding of Directors or cause to be voted in favor of such person proposed or nominated by the Investor Designee, if any)for election to the Company’s Board of Directors any shares of Common Stock;
(dc) directly or indirectly, encourage, accept knowingly encourage or support a tender, exchange or other offer or proposal by any other Person Third Party with respect to shares of Common Stock or group any securities convertible or exchangeable into Common Stock; provided, however, that from and after the filing of a Schedule 14D-9 (an “Offeror”or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 under the Exchange Act) for securities of by the Company (if recommending that stockholders accept any such offer or proposal wouldproposal, if consummated, result in a Change of Control Investor shall not be prohibited from taking any of the Company, actions otherwise prohibited by this Section 8.2(c) only for so long as the Company maintains and does not withdraw such offer or proposal is referred to as an “Acquisition Proposal”)recommendation;
(ed) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)) in opposition to the recommendation of a majority of the Company’s Board of Directors with respect to any matter, or seek to advise or influence any Person, with respect to voting of any securities shares of Common Stock; provided, however, that the CompanyStandstill Parties may solicit proxies or consents and may become a participant in a solicitation in connection with any proposal that would adversely affect the Investor’s rights under the Transaction Agreements [***] (it being agreed that the foregoing proviso shall not relate to proposals for the nomination and/or election of directors and Company Equity Plans (as defined below));
(fe) deposit any securities shares of the Company Common Stock in a voting trust or subject any securities shares of the Company Common Stock to any arrangement or agreement with respect to the voting of such securities, including the granting shares of any proxy (other than pursuant to this Agreement)Common Stock;
(gf) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar Change of Control transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(hg) act in concert with any Third Party to take any action in clauses (a) through (gf) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC with respect to the Company or any securities of the CompanyExchange Act;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kh) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (if) above; provided, however, that nothing contained in this Section 2.1 8.2 shall preventprohibit the Investor or its Affiliates from acquiring a company or business that owns shares of Common Stock or any securities convertible or exchangeable into Common Stock provided that any such securities of the Company so acquired will be subject to the provisions of this Section 8.2; or
(i) request or propose to the Company’s Board of Directors (or any committee thereof), restrictany member(s) thereof or any officer of the Company that the Company amend, encumberwaive, or limit consider the amendment or waiver of, any provisions set forth in any manner: this Section 8.2 (including this clause (i)); provided, however, that (A) nothing contained in this Section 8.2 shall prohibit the Investor or any of its Affiliates from making proposals to the Company’s Chairman or Chief Executive Officer on a confidential, nonpublic proposals basis for a proposed transaction between the Parties of the type described in the foregoing clauses (a) and (f) or a proposal for a waiver or amendment of the type described in clause (i) above, in either such case so long as the Investor reasonably believes in good faith that neither it nor the Company would reasonably be expected to be required by applicable Law or stock exchange requirement to disclose publicly any such proposal and (B) nothing in the foregoing clause (b) shall prohibit the Investor from proposing to the Board Company’s Nominating and Corporate Governance Committee (and not pursuant to the advance notice provisions set forth in the Company’s bylaws), on a confidential, non-public basis, potential director candidates for consideration by the Company’s Nominating and Corporate Governance Committee, which candidates the Investor believes would be in the best interest of the Company and its stockholders, so long as the Investor reasonably believes in good faith, after consultation with its outside counsel, that neither it nor the Company would reasonably be expected to be required by applicable Law or stock exchange requirement to disclose publicly any such proposal. Neither (x) transfers or resales of the Shares by the Investor to any other person in compliance with Section 8.5 or (y) the mere voting of the Shares subject to Section 8.3 will be deemed to be a transaction involving a Business Combination following breach of the Investor’s standstill obligations under this Section 8.2.
(j) Section 8.2 shall terminate and have no further force or effect, upon the earliest to occur of:
(i) provided that none of the Standstill Parties has violated Section 8.2, the public announcement by the Company after the Second Closing Date that it has entered into a or any Third Party of any definitive agreement with a between the Company and such Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or and/or any of its Affiliates from exercising providing for a Change of Control;
(ii) a Third Party commences a tender offer seeking to acquire beneficial ownership of more than 50% of the Company’s outstanding Common Stock and the Board of Directors of the Company has publicly supported the proposal or recommended that the stockholders tender their respective rightsCommon Stock in such tender offer;
(iii) (x) a bona fide tender offer by a Third Party which is not opposed by the Company’s Board of Directors (but only after the Company’s filing of a Schedule 14D-9, performing their respective obligations or otherwise consummating any amendment thereto, with the transactions contemplated SEC disclosing the recommendation of the Company’s Board of Directors with respect to such tender offer), or (y) an issuer tender offer by the Company; provided that Section 8.2 shall be reinstated and apply in full force according to its terms if any event set forth in this Agreementclause (iii), which resulted in the termination of Section 8.2 is not completed or if such announced transaction is abandoned and no similar transaction has been announced and not abandoned; or
(iv) the expiration of the Standstill Term; provided, however, that if Section 8.2 terminates due to (x) clause (i) above and such definitive agreement is abandoned and no other definitive agreement providing for a Change in Control has been announced and not abandoned or terminated within ninety days thereafter or (y) clause (ii) above and the tender offer is withdrawn or abandoned or the Board of Directors of the Company withdraws its recommendation in favor of such tender offer prior to the completion of the tender offer, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, restrictions contained in each case, in accordance with the terms hereof and thereofSection 8.2 shall again be applicable until otherwise terminated pursuant to this Section 8.2(j).
Appears in 1 contract
Sources: Stock Purchase Agreement (Jounce Therapeutics, Inc.)
Standstill. During 5.1 Each Holder agrees that, from the period date hereof to the date that is twelve (such period, 12) months following the Closing Date (the “Standstill TermPeriod”) commencing as ), none of it or its Affiliates under its control (or anyone acting on behalf of or at the First Closing Date and continuing until the later direction of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(asuch Persons) other than Permitted Purchases and purchases of Preemptive Right Shareswill, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or do any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing following unless requested or approved in this Section 2.1(a) shall prevent or prohibit the Investor from investing advance in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon writing by the stockholders Company:
i. engage in any solicitation of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), or seek to advise or influence any Personin each case, with respect to voting of any securities of the Company;
ii. form, join or in any way participate in any “group” (fwithin the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit F, but does not include any other entities or persons not identified on Exhibit F as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of a Holder 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;
iii. deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of the Holders and otherwise in accordance with this Agreement;
iv. seek, or knowingly encourage any Person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any proxy (other than pursuant to this Agreement)directors;
(gA) propose make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (iB) make any offer or proposal (with or without conditions) with respect to any merger, consolidationacquisition, recapitalization, restructuring, disposition or other business combination, tender combination involving the Holders or exchange offer, purchase of their controlled Affiliates and the Company’s assets , (C) affirmatively solicit a third party to make an offer or businessesproposal (with or without conditions) with respect to any merger, purchase acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
vi. seek, alone or in concert with others, representation on the Board;
vii. knowingly seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or any Derivativespecial meeting of stockholders, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction except in accordance with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveAgreement; or
(k) enter into discussions, negotiations, arrangements viii. make any request or agreements submit any proposal to amend the terms of this Agreement other than through non-public communications with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party would not be reasonably determined to trigger public disclosure obligations for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofParty.
Appears in 1 contract
Sources: Senior Secured Convertible Notes Agreement (Comscore, Inc.)
Standstill. During (a) Subject to the period (such periodprovisions of this Section 6.04, from the “Standstill Term”) commencing as of date hereof until the First Closing Date and continuing until or the later earlier termination of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board this Agreement pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingArticle VII, except as approved, invited or waived contemplated by the Company Transaction Documents or in furtherance of the Board, or as transactions contemplated by this Agreement:
(a) other than Permitted Purchases , or as otherwise approved by the Board of Directors, neither the Investor nor the Guarantor shall, and purchases each of Preemptive Right Sharesthe Investor and the Guarantor shall cause each of their respective Affiliates not to, in any manner, directly or indirectly, acquire beneficial ownership acting alone or with others, including as part of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)13D Group or through or in concert with their respective directors, exceptofficers, nothing in this Section 2.1(a) shall prevent employees, agents or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;representatives:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) acquire or agree, offer, seek or propose, whether by purchase, tender or exchange offer, to have called acquire ownership of any meeting (x) of the stockholders businesses or material assets of the Company or propose any matter to be voted upon by the stockholders Subsidiary or (y) Beneficial Ownership of the Company(i) any Equity Securities or any equity securities of any Subsidiary, or (ii) propose any derivative instrument the value of which is determined by reference to any Equity Security;
(ii) make any proposal for a merger, reorganization, recapitalization, business combination or nominate for election to other similar extraordinary transaction involving the Board Company or any person whose nomination has not been approved by a majority of the Board Subsidiary (excluding the other than any Subsidiary in which Investor Designee, if anyholds an interest);
(diii) directly seek to influence the control or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities management of the Company or any Subsidiary (if such offer other than any Subsidiary in which Investor holds an interest) in any manner, including by engaging in any “solicitation” (within the meaning of the Exchange Act) of proxies or proposal wouldconsents to vote any Equity Securities, if consummatedor becoming a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, result in a Change of Control or calling, or seeking or proposing to call, any meeting of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)’s stockholders in connection therewith;
(eiv) directly or indirectlyin any manner, solicit proxies or consents agree, attempt, seek or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company or any rights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Equity Securities or any equity securities of any Subsidiary in a any voting trust or subject similar arrangement;
(v) form or join in the formation of a 13D Group with respect to any Equity Securities or equity securities of any Subsidiary (other than otherwise to the Company or the relevant Subsidiary or a Person specified by the Company in a proxy card provided to stockholders of the Company or the relevant Subsidiary by or on behalf of the Company or the relevant Subsidiary);
(vi) publicly announce any intention, plan or arrangement in connection with any of the foregoing or finance (or arrange for financing for) any Person for the purposes of pursuing any of the foregoing; or
(vii) enter into any discussions with any third party regarding, or take any action that would require the Company to make any public disclosure with respect to any arrangement or agreement of the foregoing; provided that (i) nothing in this Section 6.04 shall be construed as prohibiting the Guarantor from engaging in any confidential discussions with the chief executive officer of the Company with respect to the voting matters set forth in Section 6.04(a), provided such discussions do not require the Company to make any public disclosures with respect thereto or with respect to the foregoing and (ii) the restrictions set forth in this Section 6.04 shall terminate and be of such securities, including the granting of no further force or effect if any proxy Person (other than pursuant to this Agreementthe Investor or any Affiliate of the Investor);
, whether singly or as part of a 13D Group, acquires a majority of the Company’s Equity Securities or all or substantially all of the Company’s and its Subsidiaries’ assets, taken as a whole (g) propose (i) any whether by merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation sale, equity issuance or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”otherwise);.
(hb) act in concert with any Third Party to take any action in clauses (a) through (g) above, orNeither the Investor nor the Guarantor will request, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or that the Company (or any of its officersAffiliates, directors, Affiliates officers, employees, attorneysagents or representatives) terminate, accountantsamend, financial advisors and other professional representatives), directly modify or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require 6.04. The Investor and the Guarantor shall promptly notify the Company of any material proposal made to make a public announcement regarding, a potential Business Combination its or any Subsidiary of Guarantors’ board members or executive officers with respect to any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof6.04(a).
Appears in 1 contract
Standstill. During (a) Subject to the period (such periodprovisions set forth below, without the “Standstill Term”) commencing as prior consent of a majority of the First Closing Date Independent Directors, each Purchaser will not and continuing until will cause each member of its Purchaser Group not to:
(i) acquire or agree, offer or propose to acquire, other than as contemplated or permitted in the later Transaction Documents, directly or indirectly, alone or in concert with any other Person, by purchase or otherwise, any (A) ownership of any of the material assets or businesses of the Company or any of its Subsidiaries, or any rights or options to acquire such ownership (including from any third party), or (B) Beneficial Ownership of any securities of the Company or any of its Subsidiaries, or any rights or options to acquire such ownership (including from any third party); provided, however, that the foregoing shall not apply (x) to any Securities purchased pursuant to the terms of this Agreement or acquired on the conversion thereof or in exchange therefor, (y) to any Securities purchased pursuant to Permitted Transfers, including as between the WP Purchasers and the Deerfield Purchasers pursuant to Section 5.19, or pursuant to the exercise of rights set forth in Section 5.4, or (z) any Common Stock purchased in Market Transfers so long as the aggregate amount of securities purchased in Market Transfers by such Purchaser represents not more than 5% of the Company’s outstanding shares of Common Stock on a Fully Diluted Basis;
(ii) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, with respect to any matter from holders of any shares of stock of the Company or any securities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of such stock;
(iii) initiate, or intentionally induce any other Person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) to initiate, any shareholder proposal or tender offer for any securities of the Company or any subsidiary thereof, any Change of Control of the Company or any of its Subsidiaries or the convening of a stockholders’ meeting of the Company or any of its Subsidiaries; or
(iv) enter into any arrangements or understandings with any other Person with respect to any matter described in the foregoing subparagraphs (i) through (iii).
(b) The provisions of Section 5.2(a) shall not apply in respect of any action taken by the WP Purchaser Designees in their capacity as members of the Board or any proposal by a Purchaser to the Board in a manner that such Purchaser believes in good faith does not require public disclosure by the Company. In addition, notwithstanding the provisions set forth in this Section 5.2, each member of a Purchaser Group shall be entitled to make any disclosures required by applicable law. The provisions of Section 5.2(a) shall terminate on the earliest of (i) the second (2nd) anniversary of the Second Closing DateDecember 7, 2011, (ii) the date on which the Investor ceases to have the right to designate a director any WP Purchaser Designee is not, in either case, elected to the Board pursuant at any annual meeting of the shareholders of the Company (or at any special meeting held to Section 5elect directors in lieu of an annual meeting) and is not otherwise appointed to the Board, and (iii) the date of a Change of Control, (iv) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) Company waives the provisions of Section 203 of the shares DGCL for any Person (other than the Purchasers), (v) the date of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived a material violation by the Company of any term of or condition set forth herein, where the Board, Company does not cure such violation within thirty (30) days after written notice of such breach from one or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities more of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Purchasers who is actually adversely affected by the stockholders of the Companysuch breach, or (iivi) propose the date immediately following the Stockholder Approval Outside Date if the Company fails to obtain the Stockholder Approval on or nominate for election prior to the Board Stockholder Approval Outside Date (such earlier date being referred to herein as the “Standstill Termination Date”). In addition, the provisions of Section 5.2(a) shall not apply at any person whose nomination has not been approved by a majority of time after (A) the Board (excluding resolves to pursue a Buyout Transaction or a transaction that is contemplated by the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, Board to result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (iiB) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (approves, recommends or accepts a Buyout Transaction or a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with Control proposed by any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in other than any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofPurchaser Group member).
Appears in 1 contract
Standstill. During So long as the period (such period, the “Standstill Term”) commencing as Icahn Associates Nominee is a member of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementno member of the Icahn Group nor any Icahn Affiliate shall:
(a) solicit proxies or written consents of stockholders, or any other person with the right to vote or power to give or withhold consent in respect of the Voting Securities (as defined below), or conduct, encourage, participate or engage in any other type of referendum (binding or non-binding) with respect to, or from the holders of Voting Securities or any other person with the right to vote or power to give or withhold consent in respect of the Voting Securities, make, or in any way participate or engage in (other than Permitted Purchases and purchases by voting its shares of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument Voting Securities in a manner that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”does not violate this Agreement), exceptany “solicitation” of any proxy, nothing in this Section 2.1(a) shall prevent consent or prohibit the Investor from investing in a fund other authority to vote any Voting Securities, with respect to which any matter, or become a participant in any contested solicitation with respect to the Investor does not have Company, including without limitation relating to the removal or share decision-making authority over investment or divestment decisionsthe election of directors;
(b) make form or join in a tenderpartnership, exchange limited partnership, syndicate or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(cgroup, including without limitation a group as defined under Section 13(d) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of the Common Stock, or otherwise support or participate in any securities of effort by a third party with respect to the Company;
(f) matters set forth in Section 3(a), or deposit any securities shares of the Company Common Stock in a voting trust or subject any securities shares of Common Stock to any voting agreement, other than solely with other members of the Company to any arrangement Icahn Group or agreement other Icahn Affiliates with respect to the voting shares of such securities, including the granting of any proxy (other than Common Stock now or hereafter owned by them or pursuant to this Agreement);
(gc) without the prior approval of the Board contained in a written resolution of the Board, (x) either directly or indirectly for itself or its affiliates, or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or (y) except as set forth in the next sentence, in any way knowingly support, assist or facilitate any other person to effect or seek, offer or propose to effect, or cause or participate in, any (i) any merger, consolidation, business combination, tender offer or exchange offer, purchase merger, acquisition or other business combination involving the Company or any of the Company’s its subsidiaries or affiliates; (ii) any form of business combination or acquisition or other transaction relating to a material amount of assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries or affiliates or (iii) any form of restructuring, recapitalization or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of its subsidiaries or affiliates. Notwithstanding the foregoing, nothing in this Section 3(c) shall prohibit any member of the Company;
(i) request Icahn Group or propose any Icahn Affiliate from engaging in private discussions with third parties regarding a potential transaction to be proposed by such third party or presenting any potential transaction to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make on a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementprivate basis, in each case, in accordance circumstances that would not reasonably be expected to require public disclosure by the Company or any member of the Icahn Group or any Icahn Affiliate, in each case at or around the time the proposal is made;
(d) [Intentionally omitted]
(e) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company on or following the date of this Agreement: (i) in any document or report filed with or furnished to the terms hereof and thereofSEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview).
Appears in 1 contract
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 18 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. (1) During the such period as (such periodx) Leven is Chairman, the “Standstill Term”) commencing as Chief Executive Officer or President of the First Closing Date Company and continuing until the later of (iy) the second (2nd) anniversary of Principal Stockholders and their Included Transferees, in the Second Closing Dateaggregate, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) at least one-half of the shares of Common Stock then issued and outstandingowned by such Persons, in the aggregate, on the date hereof, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingDesignated Holders each agree, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result of Directors of the Company specifically expressed in a Change resolution adopted by a majority of Controlthe directors of the Company who are not Affiliates of the Designated Holders, is referred that the Designated Holders, acting either individually or together, will not, and the Designated Holders will use their reasonable best efforts to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orcause each of its Affiliates not to, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;:
(i1) request acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally, provided, that any such securities shall be subject to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesprovisions hereof), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (as hereinafter defined), by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any amendment or waiver equity securities of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make that would result in such Designated Holder and its Affiliates, in the aggregate, owning Voting Securities representing a public announcement regardinggreater amount of the voting power of the Company than would be held by any Nonexcluded Person following such transaction. "Nonexcluded Person" means any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Principal Stockholders, the Included Transferees or a potential Business Combination or "group" which includes any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Principal Stockholders or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.Included Transferees;
Appears in 1 contract
Standstill. During (a) Subject to Section 5.2(b), until the period three (such period, 3)-year anniversary of the Closing Date (the “Standstill TermPeriod”) commencing as of ), the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Holder shall not, and (iii) the date on which the Investor (including SK ecoplant and SPV) and shall cause each of its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall Affiliates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership alone or in concert with others, without the prior written approval of Common Stock and/or Common Stock Equivalents and/or the Board:
(i) except with respect to exercising its rights in accordance with Article VI (subject to the limitations set forth therein) or with respect to the Holder’s acquisition of the Acquired Shares pursuant to Article II of the Contribution Agreement, acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, knowingly through the acquisition of control of another Person (as defined below), through swap or hedging transactions, purchase of options or otherwise (the taking of any instrument that gives such action, an “Acquisition”), Beneficial Ownership of any Equity Securities;
(ii) propose or initiate any tender or exchange offer involving any Equity Securities of the Investor Company or any other business combination, acquisition, merger, joint venture, recapitalization, restructuring or similar transaction involving the economic equivalent Company, in each case, other than a transaction approved by the Board in writing;
(iii) other than solely to solicit proxies to effectuate the election of ownership the Holder Designees pursuant to Section 8.1, solicit any proxy, consent or other authority to vote of an amount stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities of securities 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, or knowingly assist, knowingly advise, knowingly encourage or knowingly influence any Person (other than the Company) in, any “solicitation” of any proxy, consent or other authority to vote any Voting Securities of the Company (a “Derivative”other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(iv) form, exceptjoin, nothing or in this any way knowingly participate in any partnership, limited partnership, syndicate or group (within the meaning of Section 2.1(a13(d)(3) shall prevent or prohibit of the Investor from investing in a fund Exchange Act) with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders Voting Securities of the Company or propose otherwise act in concert with any matter Person in respect of any Voting Securities of the Company other than its Affiliates;
(v) otherwise act, alone or in concert with others, to be voted upon by seek to control the management, Board or policies of the Company or, other than in accordance with Article VIII, to seek the removal of any member of the Board or to obtain representation on the Board;
(vi) (A) 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 at any annual or special meeting of the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved action by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control written consent of the Company’s stockholders in lieu thereof, such offer and any adjournment, postponement, rescheduling or proposal is referred to as an continuation thereof (each, a “Acquisition ProposalStockholder Meeting”);
) or (eB) directly deposit or indirectly, solicit proxies or consents agree or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities Voting Securities of the Company in a any voting trust or similar arrangement, or subject any securities Voting Securities of the Company to any agreement or arrangement or agreement with respect to the voting of such securitiessecurities (including a voting agreement or pooling arrangement), including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iI) any mergersuch voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consolidation, business combination, tender consent or exchange offer, purchase of the Company’s assets other authority to vote in connection with a solicitation made by or businesses, purchase of any securities on behalf of the Company or (II) customary brokerage accounts, margin accounts and prime brokerage accounts so long as the Holder retains the sole right to vote any Derivative, or such securities at any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Stockholder Meeting;
(hvii) act in concert with publicly make or publicly advance any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose proposal to the Board amend, modify or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including Section 5.2; provided, that the Holder may make confidential requests to the Board to amend, modify or waive any provision of this clause (i))Section 5.2, it being understood the Board may accept or reject any such request or proposal;
(jviii) make any public announcement regardingstatement, or take any action which would reasonably be expected to require that could require the Company to make a public announcement regardingannouncement, a potential Business Combination or regarding any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(kix) enter into discussionsany discussion, negotiationsnegotiation, arrangements agreement, arrangement or agreements with understanding concerning any of the foregoing (other than this Agreement) or knowingly encourage, knowingly assist, solicit, seek, or seek to cause any Person relating to undertake any action inconsistent with this Section 5.2.
(b) Notwithstanding the foregoing in Section 5.2(a) or any other provision of this Agreement, the Holder and its Affiliates shall not be prohibited from making a confidential offer or proposal directly to the foregoing actions referred Board, and no restrictions set forth in Section 5.2(a) or any other provision in this Agreement shall in any way be deemed to in (a) through (i) above; provided, however, that nothing contained restrict or prohibit any actions taken or to be taken by any Holder Designee in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties capacity as a member of the Board; , (ii) restrict or prohibit the Holder from exercising its rights pursuant to any voting agreements entered into with Crestview or the Employee Shareholder Committee in connection with the transactions contemplated hereby in accordance with the terms thereof, (iii) restrict or prohibit the Holder from exercising any of its rights under this Agreement, including under Section 6.4 and Section 7.2, and its consent rights set forth in Article IX, or (Civ) restrict or prohibit the Investor or Holder from exercising its rights as a Holder in accordance with the terms of the Preferred Stock.
(c) In addition to the restrictions set forth in Section 5.1 and Section 5.2(a), until the seven (7)-year anniversary of the Closing Date, neither Holder nor any of its Affiliates from exercising their respective rightsshall be permitted to enter into or consummate any privately negotiated Transfer of Equity Securities, performing their respective obligations which would result in any Person or otherwise consummating group (within the transactions contemplated by meaning of Section 13(d)(3) of the Exchange Act) having Beneficial Ownership of fifteen percent (15%) or more of the outstanding capital stock of the Company after giving effect to such Transfer, other than any Transfer to any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act) having Beneficial Ownership of fifty percent (50%) or more the outstanding capital stock of the Company before giving effect to such Transfer. For the avoidance of doubt, this AgreementSection 5.2(c) shall not restrict any Transfer of Equity Securities pursuant to (i) any registered underwritten offering, any registered or Rule 144 sale to the Purchase Agreement, Joint Venture Agreementpublic through a broker or underwriter where the Holder does not direct the broker or underwriter with respect to any ultimate purchasers, or the Preferred Distributor Agreement(ii) any tender offer, exchange offer, merger, business combination or other similar transaction, in each case, in accordance with, and to the extent permitted by, Section 5.1, to the extent applicable; provided, further, that in the case of a third-party tender or exchange offer, such third-party tender or exchange offer shall be with respect to at least a majority of the outstanding shares of Common Stock.
(d) For all purposes of this Agreement, the Holder shall not be deemed to be a part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with Crestview and the Employee Shareholder Committee, as applicable, solely as a result of the transactions contemplated by voting agreements entered into with such parties pursuant to the terms hereof and thereofof the Contribution Agreement.
Appears in 1 contract
Sources: Shareholder Agreement (Victory Capital Holdings, Inc.)
Standstill. During (a) Except as otherwise provided in this Agreement and in the period Subscription Agreement, until one (1) year from the date hereof, provided that if the Closing Date for the Second Investment (each as defined in the Subscription Agreement) has occurred within such one (1) year period, then until one (1) year following the “Standstill Term”) commencing as Closing Date for the Second Investment, the Investor shall not, and shall cause each of the First Closing Date and continuing until the later of Investor’s Affiliates not to:
(i) the second (2nd) anniversary of the Second Closing Date, directly or indirectly purchase any Common Shares or securities convertible into Common Shares;
(ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do make or in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesway participate, directly or indirectly, acquire beneficial ownership indirectly in any “solicitation” of votes or proxies in respect of Common Stock and/or Common Stock Equivalents and/or Shares and in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent manner influence any other person or prohibit the Investor from investing in a fund entity with respect to which the Investor does not have such “solicitation” or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC proxy group with respect to the Company or voting of any securities of the CompanyCorporation not held by the Investor, except a proxy solicitation by management in any meeting of Shareholders;
(iiii) request otherwise act alone or propose with others to seek to control the management, the Board of Directors or policies of the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Corporation;
(jiv) directly or indirectly make any public announcement regardingor participate in a tender offer or take-over bid to Shareholders, or take any action that could require the Company propose a transaction to make Shareholders involving a public announcement regardingmerger, a potential Business Combination arrangement, combination or any amalgamation, or disposition of substantially all of the matters set forth in clauses (a) through (i) aboveassets of the Corporation; or
(kv) enter into discussions, negotiations, arrangements or agreements with announce its intention to do any Person relating of the foregoing.
(b) None of the provisions of this Section 7 shall be construed to the foregoing actions referred to in (a) through (i) above; providedrestrict the Investor from making confidential proposals to or communications with the Board of Directors and/or management of the Corporation with respect to any transaction, however, that nothing contained or (ii) prohibit the acquisition of such number of Common Shares allowing the Investor to maintain its shareholdings at the Investor’s ownership percentage immediately after giving effect to both the First Investment and Second Investment as contemplated in the Subscription Agreement.
(c) The Investor’s obligations under this Section 2.1 7 shall prevent, restrict, encumber, terminate immediately and cease to be of any force or limit in any manner: effect on the date upon which (A) a third party, other than an Affiliate of the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for makes a transaction involving a Business Combination following the good faith public announcement by of the Company after commencement of a take-over bid to acquire 50% or more of the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationCommon Shares; (B) the Investor Designee from performing its duties as Corporation publicly announces the entering into of a member definitive agreement to effect a change of the Boardcontrol transaction; or (C) a third-party (other than an Affiliate of the Investor Investor) acquires at least 20% of the outstanding Common Shares or any (D) the Board of its Affiliates from exercising their respective rightsDirectors of the Corporation resolves to engage in a formal process that is intended to result in a transaction, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementwhich if consummated, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofwould constitute a change of control transaction.
Appears in 1 contract
Sources: Investor's Rights Agreement (Aptose Biosciences Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each of the First Closing Date Company and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingagrees that, except as approved, invited ---------- otherwise provided in or waived by the Company or the Board, or as contemplated by this Agreement:
, including without limitation the transactions contemplated by the Universal Agreement (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”as defined below), exceptfor a period from and after the date hereof until December 31, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender1999, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyneither it nor any of its Subsidiaries will, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses other party: (i) and (ii) that would result in a Change of Controlacquire, is referred offer to as a “Business Combination”);
(h) act in concert with any Third Party acquire, or agree to take any action in clauses (a) through (g) above, oracquire, directly or indirectly, formby purchase or otherwise, join any voting securities or direct or indirect rights to acquire any voting securities of the other party or any Subsidiary thereof, or any material amount of the assets of the other party or any Subsidiary or division thereof outside the ordinary course of business; (ii) make, or in any way participate in a “partnershipin, limited partnershipdirectly or indirectly, syndicate, or other group” any "solicitation" of "proxies" (as such terms are used in the rules of the SEC Commission) to vote, or seek to advise or influence any Person with respect to the Company or voting of, any voting securities of the Company;
other party for the purpose of changing or influencing the control of the other party; or (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jiii) make any public announcement regardingwith respect to, or take submit a proposal for, or offer of (with or without conditions) any action that could require merger, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction involving the Company to make a public announcement regarding, a potential Business Combination other party or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements its securities or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveassets; provided, however, that nothing contained in this Section 2.1 the foregoing restrictions shall prevent, restrict, encumber, or limit in any manner: not preclude -------- ------- Investor from (A) acquiring the Investor shares of Common Stock contemplated by this Agreement or any of its Affiliates from making confidentialthe Universal Agreement, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as pursuing and consummating a member of the Board; or Permitted Transaction, (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating filing a Schedule 13D in connection with the transactions contemplated by this Agreement, (D) voting its shares of Common Stock within its discretion on any matter submitted for a vote or consent of the Purchase Agreement, Joint Venture AgreementCompany's stockholders, or (E) taking any other action contemplated by this Agreement; provided, further, that the Preferred Distributor Agreement, restrictions on Investor in each case, this Section 4.4 shall -------- ------- lapse automatically to the extent any Person other than Investor takes any action with respect to the matters described in accordance with the terms hereof clauses (ii) and thereof(iii) above.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Each Investor agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(bi) make a tenderacquire, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called alone or in concert with any meeting of the stockholders of the Company other individual or propose any matter to be voted upon entity, by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange offer, agreement or other offer business combination or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldmanner, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting beneficial ownership of any securities of the Company;
(fii) deposit submit any securities stockholder proposal (pursuant to Rule 14a-8 promulgated by 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, or nominate any candidate for election to the Board (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written 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) in opposition to the recommendation or proposal of the Company in a voting trust Board, or subject recommend or request or induce or attempt to induce any securities of the Company other person to take any arrangement such actions, or agreement seek to advise, encourage or influence any other person with respect to the voting of such securities, including the granting of any Common Stock or grant a proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent voting of the Common Stock or other voting securities to any person other than to the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to or persons appointed as a “Business Combination”)proxies by the Board;
(hiv) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, 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 such terms are used set forth in the rules Schedule 13D on the date hereof;
(v) seek to call, or to request the call of, a special meeting of the SEC Company’s stockholders, or make a request for a list of the Company’s stockholders;
(vi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 1 and Section 2 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 or a change in the size or composition of the Board;
(viii) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (A) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (including 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, acquisition or other business combination involving the Company or any of its subsidiaries, or (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of the Companyits subsidiaries;
(iix) request or propose to the Board or the Company (or make any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors demands for books and records and other professional representatives)materials pursuant to Section 220 of the DGCL or pursue any litigation related thereto against the Company, directly or indirectlyto encourage, assist or cooperate with any third party with respect to any such demand(s) or litigation;
(x) disclose publicly, or privately in a manner that could reasonably be expected to become public, any amendment intention, plan or waiver arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provision provisions of this Section 2.1 (including this clause (i)3(a);
(jxii) make any public announcement regarding, or take any action publicly request that could require the Company to make a public announcement regardingamend or waive any provision of Sections 2 and 3(a);
(xiii) enter into any agreement, a potential Business Combination arrangement or understanding concerning any of the matters set forth in clauses foregoing (aother than this Agreement) through (i) above; oror encourage or solicit any person to undertake any of the foregoing activities;
(kxiv) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 3(a) or elsewhere in this Agreement shall prevent, restrict, encumber, or limit in any manner: prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director of the Investor Company, from (1) taking any action or making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to any Co-Executive Chairman or the Chief Executive Officer or any other director of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationCompany; (B) the an Investor Designee from performing its duties Director, acting in his or her fiduciary capacity as a member director of the BoardCompany, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to any Co-Executive Chairman or the Chief Executive Officer or another other officer or director of the Company; or (CD) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of directors of the Company and the other matters referenced in Section 2(a).
(b) As used in this Agreement:
(i) the Investor term “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified with respect to the specific action at issue hereunder; the term “Associate” means any corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and any relative or spouse of such person, or any relative of its Affiliates from exercising their respective rightssuch spouse, performing their respective obligations or otherwise consummating who has the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementsame home as such person, in each case, with respect to the specific action at issue hereunder; the term “control” shall have the meaning set forth in accordance with Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms hereof “beneficial owner” and thereof.“beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and
Appears in 1 contract
Sources: Settlement Agreement (Iroquois Capital Management, LLC)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) The Holder, on behalf of himself and his Affiliates, as a group, and the Members, as a group, irrevocably agree that they will not acquire through purchase in a private transaction or in the public market, by transfer or assignment, by gift or in any other than Permitted Purchases and purchases of Preemptive Right Sharesmanner, directly or indirectlyindirectly (with or without consideration), acquire beneficial ownership shares of Purchaser Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of (each an amount of securities of the Company (a “DerivativeAcquisition”), exceptto the extent that after giving effect to an Acquisition, nothing the Holder or the Members (together with each of their respective Affiliates, and any other Persons acting as a group together with the Holder or the Members or any of their respective Affiliates (such Persons, “Attribution Parties”)), would beneficially own in this Section 2.1(a) shall prevent or prohibit excess of the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Beneficial Ownership Limitation (as defined below).
(b) make a tenderFor purposes of the foregoing sentence, exchange the number of shares of Purchaser Common Stock beneficially owned by the Holder or other public offer the Members, their respective Affiliates and Attribution Parties shall include the number of shares of Purchaser Common Stock:
(i) issuable upon exercise or conversion of securities convertible into, or exchangeable for, or representing the rights to receive, Purchaser Common Stock;
(ii) owned directly or indirectly or attributable to, or rights to acquire by, any spouse, ex-spouse, child, step-child, parent or sibling of any such Person; and
(iii) owned by any Person that has an agreement, understanding or arrangement, oral or written, (other than those certain Voting Agreements entered into in connection with the Purchase Agreement) to vote their Purchaser Common Stock, including Purchaser Common Stock and/or Common Stock Equivalents;owned or controlled by others, as directed by any such Person.
(c) directly or indirectly, (iBeneficial ownership shall be calculated in accordance with Section 13(d) seek to have called any meeting of the stockholders Exchange Act and the rules and regulations promulgated thereunder. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Company or propose any matter to be voted upon by Exchange Act and the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);rules and regulations promulgated thereunder.
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an The “Offeror”) for securities Beneficial Ownership Limitation” shall be 49% of the Company (if such offer or proposal wouldnumber of shares of Purchaser Common Stock issued and outstanding at the time of any contemplated Acquisition. In determining the number of issued and outstanding shares of Purchaser Common Stock, if consummated, result in a Change of Control the Holder and the Members must obtain from the Purchaser the most recent calculation of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting issued and outstanding shares of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofPurchaser Common Stock.
Appears in 1 contract
Sources: Standstill Agreement (BurgerFi International, Inc.)
Standstill. During For a period of twelve months following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, any person acting jointly or the Preferred Distributor Agreement, in each case, in accordance concert with the terms hereof and thereofPurchaser) to do or seek to do any of the foregoing; or (vi) advise, assist, encourage or act jointly or in concert with any other person in connection with any of the foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
Appears in 1 contract
Standstill. During At no time during the period Standstill Period (such period, as hereinafter defined) (so long as Isolagen and Isolagen Technologies are making the “Standstill Term”payments required by the Agreement) commencing as shall Individual (except with the approval or consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate Board as evidenced by a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived resolution duly adopted by the Company or the Board), or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesin any manner, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or do, or cause or permit any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Person controlled by Individual to do, any of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;following:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act), ) of proxies or consents with respect to securities of Isolagen with regard to any matter;
(ii) seek to advise advise, encourage or influence any Person, Person with respect to the voting of any securities of Isolagen, or induce, attempt to induce or in any manner assist any other Person in initiating any stockholder proposal or tender or exchange offer for securities of Isolagen or any change of control of Isolagen, or for the Companypurpose of convening a stockholders’ meeting of Isolagen; provided, however, that Individual may tender his Capital Stock in any such tender or exchange;
(fiii) acquire or agree to acquire, by purchase or otherwise, any class of equity securities of any entity that is publicly disclosed (by filing with the SEC or otherwise), or is otherwise known, to be the beneficial owner of more than 5% of the outstanding Capital Stock or any class or series thereof if, upon consummation of such acquisition, Individual or the Shareholder Group would (in the aggregate) own more than 5% of any class of equity securities of such entity;
(iv) effect or seek to effect or make any offer or proposal or any public announcement relating to a tender or exchange offer for securities of Isolagen or any of its subsidiaries or a merger, business combination (or other similar transaction that would result in a change of “control,” as defined in Rule 405 of the Securities Act of 1933), sale of assets, recapitalization, restructuring, liquidation, dissolution, consolidation or other extraordinary corporate transaction between Individual or the Shareholder Group and Isolagen or any subsidiary of Isolagen;
(v) deposit any securities Capital Stock of the Company Isolagen in a voting trust or subject any securities Capital Stock of the Company Isolagen to any arrangement or agreement with respect to the voting of such securities, including the granting securities of any proxy Isolagen (other than pursuant to this Agreementwith a Family Member or a trust controlled by the Individual);
(gvi) propose (i) take any merger, consolidation, business combination, tender or exchange offer, purchase action which would require Isolagen to make a public announcement regarding the types of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described matters set forth in clauses (i) and through (iiv) that would result in a Change of Control, is referred to as a “Business Combination”this Section 2(a);
(hvii) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in , for the rules purpose of the SEC with respect to the Company (A) acquiring, holding or any voting or disposing of securities of the Company;
Isolagen, or (B) taking any other actions restricted or prohibited under clauses (i) request or propose to the Board or the Company through (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision vi) of this Section 2.1 (including this clause (i)2(a);
(jviii) make any public announcement regardingparticipate with, advise, assist, encourage or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating person or entity with respect to any of the foregoing actions referred foregoing; or
(ix) disclose any intention with respect to in (a) through (i) aboveany of the foregoing; provided, however, that nothing contained in this Section 2.1 shall preventExhibit E is intended to prohibit Individual from voting his shares of Capital Stock at meetings of the stockholders of Isolagen (including through consents) or selling his shares of Capital Stock in the open market as permitted by law, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals as long as he continues to the Board for a transaction involving a Business Combination following the public announcement abide by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member restrictions of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSection 2(a).
Appears in 1 contract