Standstill. (a) Each of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement: (i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares; (ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares; (iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property; (iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect; (v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof; (vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement; (vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act; (viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets; (ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing; (x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived; (xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement). (b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares. (c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement. (d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 3 contracts
Sources: Voting Agreement (Evans Hugh D), Voting Agreement (Anaren Inc), Voting Agreement (Anaren Inc)
Standstill. (a) Each of the Shareholders hereby The Shareholder covenants and agrees with VCIF that, from and after the date hereof until the earlier of the Effective Time of the Merger and through the termination of this Agreement pursuant to Section 8, it will not, and will cause its respective principals, directors, general partners, members, officers, employees, agents (in each case, acting on the Merger AgreementShareholder’s behalf), affiliated persons (as defined in the Investment Company Act) and Representatives under the Shareholder’s control, and any other Affiliates of the Shareholder (all such Persons, collectively, the “Shareholder shall notEntities”), not to, directly or indirectly, alone or in concert with other Persons (including by directing, requesting or suggesting that any other Person take any of the actions set forth below), unless specifically permitted in writing in advance by VCIF, take any of the actions with respect to VCIF as set forth below:
(ia) specifically requested by Parent effect, seek, offer, engage in, propose (whether publicly or otherwise and whether or not subject to conditions) or cause, participate in or act to, or assist any other Person to effect, seek, engage in, offer or propose (iiwhether publicly or otherwise) expressly contemplated by the terms of this Agreement or the Merger Agreementcause, participate in or act to:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (or become a “participant” in any such “solicitation” as such terms are used defined in Regulation 14A under the rules Exchange Act, including any otherwise exempt solicitation pursuant to clause (iv) of the Securities Rule 14a-1(l)(2) and Exchange Commissionincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b), in each case, with respect to securities of VCIF (including, without limitation, any solicitation of consents to act by written consent or call a special meeting of shareholders);
(ii) knowingly encourage or advise any other Person or knowingly assist or act to vote, assist any Person in so encouraging or seek to advise or influence advising any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than such encouragement or advice that is consistent with the VCIF Board’s or ▇▇▇▇▇▇▇’▇ recommendation with respect to VCIF in connection with such matter or encouragement or advice solely amongst the Shareholder Entities) with respect to VCIF;
(iii) engage, directly or indirectly, in any short sale that derives all or substantially all of its value from a decline in the market price of VCIF (for the avoidance of doubt, the Shareholder and its Affiliates may short-sell broad based indices);
(iv) any acquisition or agreement to acquire any voting ofor equity securities (or beneficial ownership thereof) of VCIF or direct or indirect rights or options to acquire, or instruments which are convertible into, any voting or equity securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders)VCIF, other than to recommend that shareholders or a material portion of the Company vote in favor consolidated assets of VCIF, or any derivative securities or contracts the Merger and the Merger Agreementvalue of which is directly or indirectly tied to or derived from VCIF;
(viiv) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Acttender or exchange offer, merger or other business combination involving VCIF;
(viiivi) make any public announcement recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assetsto VCIF;
(ixb) form, join or in any way participate in a any “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange ActAct and Rule 13d-5(b)(1) thereunder) (other than a group that consists solely of members of the Shareholder Entities) with respect to VCIF;
(c) deposit any securities of VCIF in any voting trust or subject any securities of VCIF to any arrangement or agreement with respect to the voting of the securities of VCIF, including, without limitation, lend any securities of VCIF to any Person for the purpose of allowing such Person to vote such securities in connection with any shareholder vote or consent of VCIF or to sell such securities, other than any such voting trust, arrangement or agreement solely among the members of the Shareholder and its Affiliates;
(d) seek, alone or in concert with others, (i) election or appointment to, or representation on, the VCIF Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the VCIF Board, (ii) the removal or resignation of any member of the VCIF Board, (iii) the removal or replacement of ▇▇▇▇▇▇▇ or any of its Affiliates as the investment adviser to VCIF, (iv) the alteration, modification, or termination of the Investment Advisory Agreement, or (v) to knowingly encourage any such actions in clauses (i) through (iv);
(e) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of VCIF (pursuant to Rule 14a-8 under the Exchange Act or otherwise), or take any action (other than in accordance with this Section 6) with respect to any shareholder proposal or written consent in a manner that is not supported by the VCIF Board;
(f) make a request for a shareholder list or other books and records of VCIF under Delaware law or any other statutory or regulatory provision;
(g) seek to control or publicly influence ▇▇▇▇▇▇▇ with respect to VCIF, the VCIF Board or policies of VCIF;
(h) make any proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the VCIF Board, (ii) any change in the capitalization, share purchase program, dividend policy or distribution policy of VCIF, (iii) any other material change in VCIF’s management, business or corporate structure with respect to VCIF, or (iv) any waiver, amendment or modification to the Organizational Documents of VCIF;
(i) enter into any negotiations, arrangements or understandings with any Person with respect to any of the foregoing;, or advise, knowingly assist or knowingly encourage others to take any action with respect to any of the foregoing; or
(j) publicly request (x) seekthat VCIF, in the VCIF Board or any way which may be reasonably likely to require, involve of their respective Representatives amend or trigger public disclosure of such request pursuant to applicable Law, to have waive any provision of this Section 3.1 amended, modified or waived;
6 (xiincluding this sentence) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees the VCIF Board to specifically invite the Shareholder Entities to take any of the actions prohibited by this Section 6. Nothing in writing reasonably satisfactory this Section 6 shall be deemed to prohibit the Parent to be bound and subject to Shareholder Entities from communicating privately with the terms and provisions of this Agreementdirectors, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementofficers, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect advisors of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer VCIF (including providing, if required pursuant Carlyle) so long as such private communications would not be reasonably expected to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)trigger public disclosure obligations for any Party.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 3 contracts
Sources: Voting, Support and Standstill Agreement (Carlyle Group Inc.), Voting, Support and Standstill Agreement (Carlyle Group Inc.), Voting, Support and Standstill Agreement (Carlyle Group Inc.)
Standstill. (a) Each During the period commencing on the date of this Agreement and ending at the time the Seller and its Affiliates no longer beneficially own in excess of 5% of the Shareholders hereby agrees that, from and after the date hereof until the earlier voting securities of the Effective Time of Buyer, the Merger and the termination of the Merger Agreement, such Shareholder Seller shall not, and shall cause its Affiliates and Representatives, to the extent such Representatives are acting on behalf of such Seller or its Affiliates, not to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(ia) selleffect or seek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into any contract, option cause or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeparticipate in, or in any way knowingly assist (including, without limitation, through the provision of financing) any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, directly (i) any acquisition of beneficial ownership (as such term is defined under the Exchange Act) of any securities of the Buyer or indirectlysecurities or rights convertible into or exchangeable for any securities of the Buyer (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Buyer generally on a pro rata basis, provided that any such securities so received shall be subject to this Section 5.16, Section 5.14 and Section 5.15), (ii) any acquisition of material assets of the Buyer, (iii) any tender or exchange offer involving the securities of the Buyer, or (iv) any merger, other business combination, recapitalization restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Buyer.
(b) engage, or in any way participate, in any “solicitation” of “proxies” (as such terms are used term is defined in Rule 14a-1(l) under the rules Exchange Act) of proxies or consents (whether or not relating to the Securities and Exchange Commission) to vote, election or removal of directors); seek to advise advise, encourage or influence any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known Buyer; initiate, propose or make any stockholder proposals, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such Shareholder’s position stockholder proposal; or otherwise communicate to any Person how it intends to vote any voting securities of the Buyer on any matter presented put to shareholders), other than or proposed to recommend that shareholders be put to the stockholders of the Company vote in favor Buyer for their approval (whether at an annual or special meeting of stockholders of the Merger and Buyer, by written consent or otherwise) or otherwise seek to remove any director of the Merger AgreementBuyer;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) such term is used under the Exchange Act) with respect to any securities of the Buyer;
(d) otherwise act, alone or in connection concert with others, to seek to control or influence the management, board of directors or policies of the Buyer;
(e) take any action that might force the Buyer to make a public announcement regarding any of the foregoing;types of matters set forth in clause (a) or (b) above; or
(xf) seekenter into discussions or arrangements with any third-party with respect to any of the matters set forth in clauses (a) through (e) above. The Seller also agrees during such period not to request, in any way which may be reasonably likely to requiredirectly or indirectly, involve that the Buyer (or trigger public disclosure of such request pursuant to applicable Lawits directors, to have officers, employees or agents) amend or waive any provision of this Section 3.1 amended, modified or waived;
5.16 (xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of including this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 3 contracts
Sources: Interest Purchase Agreement, Interest Purchase Agreement (Avnet Inc), Interest Purchase Agreement (Tech Data Corp)
Standstill. (a) Each of the Shareholders The Stockholders hereby agrees agree that, from and after the date hereof until hereof, the earlier of the Effective Time of the Merger Stockholders and the termination of the Merger Agreement, such Shareholder their Affiliates shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(ia) sellunless otherwise agreed to by Parent's Board of Directors, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (including through a merger proposal, tender offer or exchange offer), any shares of Parent Stock, any securities or direct or indirect rights to acquire Parent Stock or any other securities of Parent, or any assets of the Company Parent or any subsidiary or division thereof, other than any acquisition of options to acquire Parent Stock by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as compensation for his services as a director of Parent;
(vib) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the rules of the Securities and Exchange CommissionSEC) to votevote (including by consent), or seek to advise or influence any Person person or entity with respect to the voting of, any voting securities of the Company Parent (including including, without limitation, by making publicly known such Shareholder’s your position on any matter presented to shareholdersstockholders), other than to recommend that shareholders stockholders of the Company vote in favor of the Merger and the Merger Agreement;
(viic) submit to the Company Parent any shareholder stockholder proposal under Rule 14a-8 under the Exchange Act;
(viiid) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction (including a merger or form of reorganization) involving an acquisition of the Company’s Parent or its securities or assets;
(ixe) form, join or in any way participate in a “"group” " (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(xf) seek, seek in any way which may be reasonably likely to requireway, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have any provision of this Section 3.1 2.1 amended, modified or waived;; or
(xig) otherwise take, directly or indirectly, any actions with the purpose or effect of avoiding or circumventing any provision of this Section 3.1 2.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s its ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Standstill Agreement (Integrated Defense Technologies Inc), Standstill Agreement (Integrated Defense Technologies Inc)
Standstill. For a period of three (a3) Each of the Shareholders hereby agrees that, years from and after the date hereof until hereof, each Company agrees that neither it nor any of its affiliates (as defined in Rule 12b-2 under the earlier Securities Exchange Act of 1934, as amended (the Effective Time of the Merger and the termination of the Merger Agreement"Exchange Act")) will (nor will it assist, such Shareholder shall not, provide or arrange financing to or for others or encourage others to) directly or indirectly, acting alone or in concert with others, unless (i) specifically requested by Parent or (ii) expressly contemplated in writing in advance by the terms other Company's Board of this Agreement Directors, Chairman or Chief Executive Officer. A. acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Merger Agreement:
Exchange Act) of more than 1% of any class of voting securities issued by the other Company, or any rights or options to acquire such ownership (i) sellincluding from a third party); B. propose a merger, transferconsolidation or similar transaction involving the other Company; C. offer, tenderseek or propose to purchase, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign lease or otherwise dispose acquire all or a substantial portion of (whether by merger, operation the assets of Law the other Company; D. seek or otherwise) (collectively, a “Transfer”)propose to influence or control the management or policies of the other Company or to obtain representation on the other Company's Board of Directors, or enter into any contract, option solicit or other agreement with respect to, or consent to, a Transfer of, participate in the record or beneficial ownership or both or voting power, solicitation of any proxies or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale consents with respect to the Common Stock or substantially identical property or securities of the other Company; E. enter into any discussions, negotiations, arrangements or acquire an offsetting derivative contract understandings with any third party with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares foregoing; or enter into F. seek or request permission to do any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, foregoing or seek any permission to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with to any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): provided that (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event it is understood that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and paragraph shall not prohibit the number ongoing discussions continuing to be pursued by the management of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement respective Companies in accordance with its termsthe provisions of this agreement, each Shareholder agrees that it and (ii) if a Company enters into a definitive agreement with a third party pursuant to which such third party will not bringmake a tender or exchange offer for, commenceor otherwise acquire (by merger, instituteconsolidation, maintain, prosecute, join purchase or voluntarily aid any Action in law otherwise) 50% or in equity, in any court or before any Government, which alleges that the execution and delivery more of the Merger Agreement by the common stock or other equity interests, assets or earning power of such other Company, or then the approval other Company shall be permitted to contact privately the chairman of the Merger Agreement by the board of directors of such Company Board, breaches any fiduciary duty of the Company Board (or any member thereof person 2 3 designated by such chairman) and submit to such chairman or which otherwise challenges the Merger Agreementother person an offer to acquire Voting Securities or assets of such Company and/or a request to negotiate with such Company with respect to such offer. 7.
Appears in 2 contracts
Sources: Confidentiality Agreement (Morton Acquisition Corp), Confidentiality Agreement (Morton International Inc /In/)
Standstill. (a) Each For a period of six (6) years from the Closing (the “Standstill Period”), the Investor shall not, and the Investor shall ensure that none of its Affiliates shall, nor shall any of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notforegoing Persons act in concert with any other Person to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by without the terms prior consent of this Agreement or a majority of the Merger AgreementAt-Large Directors who are Independent Directors:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign acquire or otherwise dispose of agree to acquire (whether by mergerpurchase, operation tender or exchange offer, through acquisition of Law control of another Person, by joining a 13D Group, through the use of a derivative instrument or voting agreement, or otherwise) ), Beneficial Ownership of any Equity Securities, or any Economic Right or Voting Right to or regarding any Equity Securities, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor and its Affiliates (collectivelyincluding, without limitation, any 13D Group of which any Investor or any Affiliate thereof is a “Transfer”member), or enter into any contract, option or other agreement with respect toto which the Investor, its Affiliates or consent toany such 13D Group would have Economic Rights or Voting Rights, would exceed the Standstill Limit (it being understood that in the event that there shall be more than one (1) Investor, all shares Beneficially Owned and all Economic Rights and Voting Rights held by all Investors and all other Persons that are participants in any 13D Group of which any Investor is a Transfer ofmember shall be aggregated, the record or beneficial ownership or both or voting powerand deemed Beneficially Owned and held by each Investor, for purposes of any or all of the Shareholder Owned Sharesthis Section 3.2(a)(i));
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iiiA) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, make or in any way participate in, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules and regulations of the Securities and Exchange CommissionSEC) with respect to voteany Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of, of any voting securities Voting Stock (other than (x) the Investor or any Affiliate or (y) in accordance with and consistent with the recommendation of the Company Board);
(including by making publicly known such Shareholder’s position on iii) deposit any matter presented Voting Stock or Series B Shares in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock or Series B Shares to shareholders), any arrangement or agreement with any Person (other than between the Investor and any of its First Tier Affiliates) with respect to recommend that shareholders the voting of such Voting Stock or Series B Shares;
(iv) join a 13D Group (other than a group comprising solely of the Company vote Investor and its Permitted Transferees) or other group, or otherwise act in favor concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock, Series B Shares or Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change of Control or any acquisition of Equity Securities in excess of the Merger and Standstill Limit;
(vi) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the Merger Agreement;management, Board or policies of the Company; or
(vii) submit to the Company otherwise take any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, action that would or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have compel the effect of preventing, impeding, interfering with or adversely affecting Company to make a public announcement (including any disclosure required to be made in any SEC filing under the consummation rules and regulations of the transactions contemplated by SEC) regarding any of the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under matters set forth in this AgreementSection 3.2(a). Notwithstanding the foregoing, the following Transfers are expressly permitted restrictions contained in this Section 3.2(a) shall not (A) apply with respect to the election of the Series B Directors by Investor and its Permitted Transferees in accordance with the Certificate of Designation, (B) prevent, restrict, encumber or in any way limit the ability of any Series B Director to vote on matters, make non-public statements to officers, employees, agents, management or other Directors or to take any action or make any statement at any meeting of the Board or any committee or subcommittee thereof in his or her capacity as a Director, (C) apply to or restrict any non-public discussions or other non-public communications between or among directors, members, officers, employees or agents of the Investor or any First Tier Affiliate of the Investor, or (D) restrict any disclosure or statements required to be made by any Series B Director or the Investor under applicable law.
(b) If during the Standstill Period the Investor is entitled (as a result of dilution due to future share issuances by the Company) to purchase shares of Common Stock (up to the Standstill Limit) in compliance with this Agreement Section 3.2, then unless the Board otherwise approves such purchases shall be made in full compliance with all applicable securities laws, but shall not be made by means of any tender offer.
(each such Transferc) The restrictions set forth in Section 3.2(a) shall terminate if, a "Permitted Transfer"): at any time during the Standstill Period, (i) the Company publicly announces its entry into a pledge definitive agreement, the consummation of Shareholder Owned Shares required under any credit facility which would result in existence on a Change of Control, and such agreement has not been approved by a majority of the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementSeries B Directors, (ii) Transfers the Company shall have waived the terms of its Rights Agreement to permit any Person (other than the Investor or any 13D Group of which the Investor is a family member of a Shareholder (or to a trust for the benefit of a family member) to effect a Change of Control or otherwise acquire more than fifteen percent (15%) of the outstanding Common Stock, and such transaction has not been approved by a majority of the Series B Directors, or (iii) any Person (other than the Investor or any Affiliate of the Investor or any 13D Group of which the Investor or any Affiliate of the Investor is a member) shall have commenced a bona fide public tender or exchange offer which if consummated would result in a Change of Control, unless the Board recommends against such tender or exchange offer within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 under the Exchange Act) thereof and thereafter continues to a charitable organization if oppose such tender or exchange offer. If (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or restrictions set forth in Section 3.2(a) shall have terminated as provided in this Section 3.2(c), and (y) such transferee agrees any definitive agreement described in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementclause (i) above, or transaction described in clause (ii) above, or tender or exchange offer described in clause (iii) Transfers above, as the case may be, shall have been terminated or abandoned prior to consummation thereof, and (z) any alternative offer or proposal by Investor in response to any such agreement, transaction, tender offer or exchange offer shall also have been abandoned or withdrawn prior to consummation thereof, then the restrictions set forth in Section 3.2(a) shall be reinstated.
(d) If during the Standstill Period the Board elects to commence a process intended to lead to a proposal with respect to Change of Control of the Company (whether in response to a proposal from a third party or otherwise), the Company will notify the Investor of the Board’s election and will permit the Investor to participate in such process as a potential bidder, if the transferee agrees Investor so elects, on the same terms and conditions as third party participants. As a condition to the Investor’s participation in such process, the Board may require that the Investor agree in writing reasonably satisfactory with the Company that if such process results in the Board’s approval of a Change of Control transaction with a Person other than the Investor that is a Superior Proposal as compared to any bona fide written proposal from the Investor, then the Investor will consent to such transaction, will raise no objection to the Parent to be bound and subject to the terms and provisions of this Agreementconsummation thereof, and (iv) Transfers to will tender shares of Equity Securities Beneficially Owned by it, as applicable, upon the Company in consummation of such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grantstransaction. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or transaction requires the approval of the Merger Agreement Company’s stockholders, the Investor agrees, if the matter is brought to a vote at a stockholder meeting, that the Investor will be present, in person or by proxy, as holders of Voting Stock, at all such meetings and be counted for determining the presence of a quorum at such meetings and will vote for the approval of any such transaction approved and recommended by the Company Board. So long as the Board continues to recommend such transaction, breaches the Investor agrees to vote and to use reasonable efforts to cause its Affiliates, as the case may be, to vote all shares of Voting Stock Beneficially Owned by the Investor and its Affiliates in favor of such transaction and for the approval of the terms thereof and in opposition to any fiduciary duty and all other proposals that are intended, or could reasonably be expected to delay, prevent, impair, interfere with, postpone or adversely affect the ability of the Company Board or any member thereof or which otherwise challenges to consummate the Merger Agreementproposals that are approved and recommended by the Board.
Appears in 2 contracts
Sources: Stockholder Agreement (Trident Microsystems Inc), Stockholder Agreement (Trident Microsystems Inc)
Standstill. During the period beginning on the date of this Agreement and ending on the fiftieth (a50th) Each anniversary of such date (such period, the “Standstill Period”), each Lakewood Party, without the prior written approval of Purchaser and of the Shareholders hereby agrees that, from and after the date hereof until the earlier board of trustees or directors of the Effective Time applicable Covered Company contained in a resolution of such board, shall not, and shall cause each of their respective officers, directors, employees, Affiliates and associates not to, take any of the Merger and the termination of the Merger Agreement, such Shareholder shall notfollowing actions, directly or indirectly, unless either alone or in concert with one or more other Person(s):
(a) (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, initiate, propose or in any way participate or engage in, directly or indirectly, any “solicitation” of “proxies” (as such terms are term is used in the proxy rules promulgated under the Exchange Act) of any proxy, consent or other authority to vote any Covered Securities, (ii) make, initiate, propose or in any way encourage, cause or attempt to cause the Securities and making by any Person of, any shareholder or stockholder nomination or other proposal (whether pursuant to Rule 14a-8 promulgated under the Exchange CommissionAct or otherwise) or any other type of shareholder or stockholder referendum (binding or non-binding) with respect to voteany Covered Company, (iii) make, initiate, propose or in any way encourage, cause or attempt to cause the making by any Person of a request for or related to a request for a meeting or an action by written consent of shareholders or stockholders of any Covered Company, (iv) encourage, advise, influence or seek to advise or influence any Person with respect to the voting ofor consenting of (or the withholding of authority of or abstention from voting or consenting) any Covered Security, any voting securities of the Company (including by making publicly known such Shareholder’s position announcing or disclosing how any Lakewood Party or any other Person intends to vote or consent or cause to be voted or consented any Covered Security on any matter presented matter, (v) grant any proxy, consent or other authority to shareholders), vote with respect to any matters (other than to recommend that the named proxies included in a Covered Company’s proxy card) for any meeting or action by written consent of shareholders or stockholders of the a Covered Company vote in favor or (vi) serve or agree to serve as a nominee of the Merger and the Merger Agreementany holder of Covered Securities to stand for election as a trustee or director of any Covered Company;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “partnership, limited partnership, syndicate or other group” (, including without limitation a group as defined under Section 13(d) of the Exchange Act with respect to any Covered Security or otherwise support or participate in any effort by a third party with respect to the matters set forth in this Section 13(d)(34.2, or deposit any Covered Security in a voting trust or subject any Covered Security to any voting agreement or other arrangement of similar effect;
(c) own, acquire, offer or propose to acquire, or agree to acquire (whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, or otherwise) any Covered Security or Derivative Security or enter into any Contract for or with respect to any Derivative Security;
(d) effect, cause, seek to effect or cause, propose (whether publicly or otherwise), participate in, make any public statement with respect to or in any way support or assist any other Person to effect, cause, seek to effect or cause, propose or participate in, any (i) tender offer or exchange offer, merger, acquisition or other business combination involving any Covered Company or any of its Affiliates, (ii) form of business combination, acquisition or other similar transaction relating to a material amount of assets of any Covered Company or any Covered Company Securities, or (iii) form of restructuring, recapitalization or similar transaction with respect to any Covered Company or any of its Affiliates;
(e) control, influence or seek to control or influence the management, board of directors or trustees (or analogous governing body), policies, governance or affairs of any Covered Company, including by seeking, proposing or supporting a request for a waiver of, or exemption or similar action under, any provision of any organizational documents of any Covered Company;
(f) institute, solicit, assist or join, as a party, any Proceeding against or involving any Covered Company or any of its current or former directors, trustees, officers or agents in their capacity as such (including derivative actions) other than to enforce the provisions of this Agreement;
(g) enter into any Contract with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing as to any Covered Company, or make any investment in or enter into any Contract with, any other Person that engages, or offers or proposes to engage, in any of the foregoing as to any Covered Company; provided, however, that the Lakewood Parties may make an investment in a mutual fund or other collective investment entity, other than a Covered Company, which owns Covered Securities if their aggregate investment in such entity comprises less than five percent of the voting power of the equity of such entity and the Lakewood Parties do not influence or direct (or attempt to influence or direct) such entity’s ownership or voting of any Covered Securities;
(h) make any public statement or disclosures or otherwise take, or solicit, cause or encourage others to take, any action inconsistent with any of the foregoing;
(xi) seekrequest or propose any amendment or waiver, or consider the amendment or waiver of, any provision set forth in this Section 4.2; or
(j) either publicly or in any way which may manner take any action that would be reasonably likely to require, involve lead to or trigger require public disclosure of such request pursuant to applicable Law, to have any provision the types of matters set forth in this Section 4.2 by a Covered Company. ▇▇▇▇▇▇▇ shall not be in breach of this Section 3.1 amended4.2 as a result of a public company or future employer of which ▇▇▇▇▇▇▇ serves as a director, modified trustee, officer, member or waived;
employee taking any action described in clauses (xia) otherwise takethrough (j) so long as ▇▇▇▇▇▇▇ did not initiate, directly or indirectlypropose, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Mergerencourage, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility vote in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b))favor of, such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)action.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Government Properties Income Trust), Share Purchase Agreement (Government Properties Income Trust)
Standstill. (a) Each During the period commencing on the date of this Agreement and ending on the Shareholders hereby date of termination of this Agreement, each Bandera Party agrees that, from and after without the date hereof until the earlier prior written consent of the Effective Time Company, which consent shall have been specifically expressed in a written resolution adopted by a majority vote of all Board members other than the Merger and the termination of the Merger AgreementBandera Directors, such Shareholder shall it will not, directly or indirectlyand will cause each of its Affiliates, unless Associates (i) specifically requested by Parent or (ii) expressly contemplated by the as such terms of this Agreement or the Merger Agreementare defined in Section 12), officers, agents and other Persons acting on its behalf not to:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase purchase, tender or exchange offer, through the acquisition of control of another Person (as such term is defined in Section 12), by joining a partnership, limited partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or otherwise, any assets Voting Securities (as such term is defined in Section 12), or otherwise become the beneficial owner (as such term is defined in Section 12) of any Voting Securities; provided, that no such acquisition shall be deemed to occur solely due to a stock split, reverse stock split, stock dividend, cancellation or repurchase of Voting Securities, reclassification, reorganization or other transaction affecting the Company or any subsidiary or division thereof;Voting Securities generally.
(viii) makeengage, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used term is defined in Rule 14a-1(l) promulgated by the rules SEC under the Exchange Act) of proxies or consents (whether or not relating to the Securities and Exchange Commission) to vote, election or removal of directors); seek to advise advise, encourage or influence any Person with respect to the voting of, of any voting securities Voting Securities in any manner other than that recommended by a majority of the Company Board; initiate, propose or otherwise “solicit” (including as such term is defined in Rule 14a-1(l) promulgated by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 SEC under the Exchange Act) stockholders of the Company for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such stockholder proposal; or otherwise communicate or seek to communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; provided, that this Section 4(b)(ii) shall not prohibit any Bandera Party from (A) voting, in such manner as it may determine in its sole discretion, any of the Voting Securities reported as being beneficially owned by Bandera Partners on the Bandera 13D; provided, however, this subparagraph (A) shall only be applicable if the Bandera Party has been advised in writing by its outside counsel that voting such Voting Securities based upon the recommendation of the Board would breach a fiduciary duty owed to its investors, (B) communicating with the Company or any officer or director of the Company in a non-public manner or (C) communicating with any Person who is an investor in any of the Bandera Parties in a non-public manner;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixiii) form, join or in any way participate in a any “group” (as defined in Section 13(d)(3) within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with respect to any Voting Securities with any Person not identified in the Bandera 13D;
(iv) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities, except with a Bandera Party or as expressly set forth in this Agreement;
(v) seek to have called, or cause to be called, any meeting of the stockholders of the Company;
(vi) make any public demand to inspect the books and records of the Company, including pursuant to any statutory right that the Bandera Parties may have;
(vii) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in, any other Person that, to the best knowledge of the Bandera Parties at the time such investment is made, engages, or offers or proposes to engage, in any of the foregoing;
(xviii) seek, in make any way which may be reasonably likely to require, involve or trigger proposal (including the public disclosure or discussion of such any proposal) or statement regarding any of the foregoing, or publicly disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or publicly disclose any request pursuant to applicable Lawamend, to have waive or terminate any provision of this Agreement; provided, that this Section 3.1 amended, modified or waived;
(xi4(b)(viii) otherwise take, directly or indirectly, shall not prohibit any actions Bandera Party from communicating with the purpose Company or any officer or director of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary a non-public manner; or
(ix) take, or cause or induce others to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that take, any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) action inconsistent with any of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)foregoing.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request During the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits period commencing on the voting of its Shareholder Owned Shares.
(c) Prior to the termination date of this Agreement and ending on the date of the 2009 Annual Meeting, each Bandera Party agrees that, without the prior written consent of the Company, which consent shall have been specifically expressed in accordance a written resolution adopted by a majority vote of all Board members, it will not, and will cause each of its Affiliates, Associates, officers, agents and other Persons acting on its behalf not to:
(i) directly or indirectly enter into any agreement, arrangement, understanding or contract (whether written or oral) with its terms, in any other stockholder or director of the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company the Common Stock or voting interests shall, without further action other securities of the partiesCompany, be deemed Shareholder Owned Shares and subject other than the terms set forth in this Agreement;
(ii) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in, any other Person that, to the provisions best knowledge of this Agreementthe Bandera Parties at the time such investment is made, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock engages, or voting interests shall automatically become subject offers or proposes to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equityengage, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Companyforegoing; or
(iii) take, or the approval cause or induce others to take, any action inconsistent with any of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementforegoing.
Appears in 2 contracts
Sources: Nomination Agreement (Bandera Partners LLC), Nomination Agreement (Peerless Systems Corp)
Standstill. (a) Each of Praesidium and the Shareholders Manager Principals hereby agrees agree that, from and after the date hereof until of this Agreement and through and including the earlier date of the Effective Time Purchaser’s annual meeting of stockholders (or any adjournment or postponement thereof) in 2021 (the Merger “2021 Annual Meeting”), except as otherwise specifically provided in this Agreement, Praesidium shall not, and Praesidium and the termination of the Merger AgreementManager Principals shall cause Praesidium’s controlled Affiliates and its Associates (as such terms are defined below) and all Managed Client Accounts not to, such Shareholder shall notin any way, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) 1. acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (but excluding any action by the Purchaser such as a stock dividend), (i) additional shares of Common Stock and any assets other securities of the Company Purchaser entitled to vote in the election of directors, or any subsidiary securities convertible into, or division thereof;exercisable or exchangeable for, securities of the Purchaser entitled to vote in the election of directors, whether or not subject to the passage of time or other contingencies (including Common Stock, “Voting Securities”), or (ii) direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) additional Voting Securities.
(vi) 2. make, participate in or in any way participate in, directly or indirectly, encourage any “solicitation” of “proxies” (as such terms are term is used in the proxy rules of the Securities and Exchange CommissionCommission (the “SEC”)) of proxies with respect to vote, the election or removal of directors of Purchaser or any other matter or proposal with respect to Purchaser or seek to advise advise, encourage or knowingly influence any Person person or entity (any “Person”) with respect to the voting of any Voting Securities;
3. initiate or propose, or otherwise “solicit” (as such term is used in the proxy rules of the SEC), directly or indirectly, the Purchaser’s stockholders for the approval of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented shareholder proposals with respect to shareholders)Purchaser, other than whether made pursuant to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-4 or Rule 14a-8 under the Exchange ActAct or otherwise, or cause or encourage any Person to initiate or propose any such shareholder proposal;
(viii) make any public announcement 4. seek, alone or in concert with respect others, the election or appointment to, or submit a proposal forrepresentation on, or offer nominate or propose the nomination of any candidate to, the Board of Directors of Purchaser (the “Board”), or seek, alone or in concert with or without conditions) others, the removal of any extraordinary transaction involving an acquisition member of the Company’s securities or assetsBoard;
(ix) form, join 5. act alone or in any way participate concert with others to control or seek to control, or knowingly influence or knowingly seek to influence, the management, the Board or the policies of Purchaser;
6. form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a “group” (as defined in under Section 13(d)(313(d) under of the Exchange Act, with respect to any Voting Securities (other than Praesidium’s Section 13(d) group as disclosed in its Schedule 13D, as amended, with respect to the Purchaser);
7. seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transaction involving the Purchaser or its subsidiaries;
8. enter into any arrangements, understanding or agreements (whether written or oral), with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing;
(x) seekforegoing actions set forth in this Section III.A.(1-7), or make any investment in or enter into any arrangement or understanding or form a “group” with any other Person that engages, or offers or proposes to engage, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of the foregoing actions set forth in this Section 3.1 amended, modified or waivedIII.A.(1-7);
(xi) otherwise take9. make any statement regarding any intent, directly purpose, plan or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests proposal with respect to the CompanyBoard, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock the Purchaser, its management, policies, affairs or voting interests shallassets, without further action of the parties, be deemed Shareholder Owned Shares and subject to or any Voting Securities or this Agreement that is inconsistent with the provisions of this Agreement, and including, without limitation, any intent, purpose, plan or proposal that is conditioned on, or would require the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock waiver, amendment, nullification or voting interests shall automatically become subject to the terms invalidation of, any provision of this Agreement., or take any action that could require the Purchaser to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; or
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges 10. request that the execution and delivery of the Merger Agreement by the Company, Purchaser or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof of their respective representatives amend or which otherwise challenges the Merger Agreementwaive any provision of this Section III.A. (including this sentence).
Appears in 2 contracts
Sources: Share Repurchase Agreement (Quanex Building Products CORP), Share Repurchase Agreement (Praesidium Investment Management Company, LLC)
Standstill. (a) Each of the Shareholders hereby ILDE agrees that, from and after the date hereof of this Agreement until the earlier of the Effective Time of the Merger and the termination of the Merger AgreementClosing, such Shareholder ILDE shall not, and shall cause its Affiliates not to, directly or indirectly, unless :
(a) except for Company Equity Interests received (i) specifically requested by Parent way of stock splits, stock dividends, reclassifications, recapitalizations or other distributions by the Company in respect of the shares of Company Common Stock issued pursuant to this Agreement, (ii) expressly contemplated by pursuant to the terms exercise of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)Warrants, or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect pursuant to the Common Stock or substantially identical property or enter into or Section 4.9, (x) acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise) any Company Equity Interests or (y) authorize, any assets of the make or commence a tender offer, exchange offer or other offer or proposal (whether written or oral) to acquire (directly or indirectly, by purchase or otherwise) Company or any subsidiary or division thereofEquity Interests;
(vib) make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission) to voteSEC), or seek to advise or influence any Person (other than (x) ILDE or its Affiliates, (y) in accordance with and consistent with the recommendation of the Company Board, or (z) solely in favor of the Transaction) with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementEquity Interests;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with for the purpose of voting, acquiring, holding or disposing of any of the foregoingCompany Equity Interests;
(xd) seeksubmit to the Company Board a written proposal for or offer of (with or without conditions), in any way which may be reasonably likely merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any of its Subsidiaries or any of their securities or assets, or make any public announcement with respect to require, involve such proposal or trigger public disclosure of such offer;
(e) request pursuant the Company to applicable Law, to have amend or waive any provision of this Section 3.1 amended, modified or waived;4.8; or
(xif) otherwise take, directly or indirectly, enter into any actions arrangement with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation third party concerning any of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (Geoglobal Resources Inc.), Securities Purchase and Exchange Agreement (Israel Land Development Company- Energy Ltd.)
Standstill. (a) Each of No Stockholder shall, during the Shareholders hereby agrees that, from period commencing on the Closing Date and continuing for 12 months after the date hereof until Closing Date (such period, the earlier “Standstill Period”), unless such action shall have been specifically invited in writing by the Parent Board (it being understood that execution of the Effective Time of the Merger this Agreement by Parent does not constitute such an invitation), and the termination of the Merger Agreement, such Shareholder shall noteach Stockholder will direct its Representatives not to, directly or indirectly:
(a) effect or seek, unless offer or propose (iwhether publicly or otherwise and whether or not subject to conditions) specifically requested by Parent to effect or (ii) expressly contemplated by the terms of this Agreement seek, or the Merger Agreementannounce any intention to effect or seek, or cause or otherwise participate in:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)any acquisition of, or enter into obtaining any contracteconomic interest in, option any right to direct the voting or disposition of, or any other agreement Right with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned SharesParent Common Stock;
(ii) enter into any voting agreementtender or exchange offer, proxyconsolidation, consent acquisition, merger, joint venture, business combination or power extraordinary transaction involving Parent or any of attorney with respect to, its Subsidiaries or deposit into all or a voting trust, material portion of the Shareholder Owned Sharesassets of Parent or any of its Subsidiaries (except that any Stockholder or its Representatives may effect or pursue an acquisition of any assets offered for sale by Parent or any of its Subsidiaries);
(iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock Parent or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;any of its Subsidiaries; or
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the rules SEC) or consents to vote any voting securities of the Securities and Exchange Commission) to voteParent or any of its Subsidiaries from any holder of any voting securities of Parent or any of its Subsidiaries, or seek to advise otherwise advise, assist or influence encourage any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on Parent or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(viib) submit to form, join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the Company any shareholder proposal under meaning of Rule 14a-8 13d-5(b)(l) promulgated under the Exchange Act) with respect to any voting or other securities of Parent or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Parent or any of its Subsidiaries or otherwise act in concert with any Person in respect of any such securities;
(viiic) call, request, or seek to have called any meeting of the stockholders of Parent or execute any written consent in lieu of a meeting of holders of any securities of Parent;
(d) otherwise seek, or propose to seek, representation on, or to control or influence, or to propose to control or influence, the Parent Board or the management, shareholders or policies of Parent or any of its Subsidiaries, or take any action to prevent or challenge any business combination or similar transaction to which Parent or any of its Subsidiaries is a party;
(e) request that Parent or any of its Representatives amend or waive any provisions of this Section 3.3, or make any public announcement with respect toto the restrictions of this Section 3.3 or any plan, arrangement or submit a proposal for, or offer of (intention with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with respect to any of the foregoing;actions restricted by this Section 3.3 or take any action, or make or permit its Representatives to take any action, that might force Parent or any of its Subsidiaries to make a public announcement or other public disclosure regarding any of the types of matters set forth in clause (a), (b), (c) or (d) above; or
(xf) seekadvise, in assist, or knowingly encourage, or direct any way which may be reasonably likely Person to requireadvise, involve assist or trigger public disclosure knowingly encourage any other persons with respect to any of such request pursuant to applicable Law, to have any provision the conduct prohibited by this Section 3.3. Notwithstanding the preceding provisions of this Section 3.1 amended3.3, modified a Stockholder and its Representatives may request any amendment, waiver or waived;
consent described in clause (xie) otherwise takefrom, directly Parent’s Chief Executive Officer or indirectlyParent’s entire Board of Directors (or any committee thereof), any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could as long as all such request is kept strictly confidential by such Stockholder and its Representatives and would not reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated require public disclosure by the Merger Agreement, including the Merger, or such Shareholder’s ability any party pursuant to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options applicable laws or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)exchange regulations.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Voting and Support Agreement (Range Resources Corp), Voting and Support Agreement (Memorial Resource Development Corp.)
Standstill. (a) Each From the Closing Date until the Standstill Termination Date, the Investors will not, and will cause Abry Partners II, LLC and Abry Partners II, LLC’s controlled Affiliates not to, do any of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementfollowing:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest engage in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of proxies or consents or become a “proxiesparticipant” in a “solicitation” (as such terms are used defined in Regulation 14A under the rules Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders of Parent) to vote any voting securities of the Securities and Exchange CommissionParent, in each case inconsistent with the recommendations of the Parent Board;
(ii) to vote, or seek to advise or influence any Person grant a proxy with respect to the voting of, of any voting securities of Parent to any Person other than the Company Parent Board and executive officers of Parent;
(including by making publicly known such Shareholder’s position iii) seek representation on the Parent Board, submit nominations for the election or removal of any matter presented directors of Parent, or seek to shareholders)remove any directors of Parent (in each case, other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal forin their capacity as, or offer of (the Series A Directors in accordance with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assetsParent Charter);
(ixiv) initiate, propose, submit, encourage or otherwise solicit stockholders of Parent for the approval of one or more stockholder proposals in a manner inconsistent with the recommendations of the Parent Board;
(v) form, join or in any way participate in a “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act), with respect to any voting securities of Parent, for the purpose of acquiring, holding, voting or disposing of any voting securities of Parent (in each case other than solely among the Investors and their Affiliates);
(vi) in connection with advise, assist, knowingly encourage or influence, or direct any Person to do, or to advise, assist, knowingly encourage or influence, or direct any other Person to do, any of the foregoing;
following: (xA) seek, in any way which may be reasonably likely to require, involve of the foregoing or trigger public disclosure otherwise circumventing any of such request pursuant to applicable Law, to have any provision the limitations of this Section 3.1 amended, modified or waived;(B) voting any voting securities of Parent in a manner inconsistent with the recommendations of the Parent Board; or
(xivii) otherwise takemake any request or submit any proposal to waive, directly terminate or indirectly, any actions with amend the purpose of avoiding or circumventing any provision terms of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (7.16 other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection through non-public communications with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)Parent.
(b) Any Transfer Notwithstanding the foregoing, nothing in this Section 7.16 will limit: (i) the Investors’ ability to (1) either vote for, vote against or abstain from voting on, any proposal submitted for a vote of stockholders which is not initiated or conducted in violation of Section 3.1(a7.16(a), (2) shall privately make and submit to the Parent and/or the Parent Board any proposal that is intended by the Investors to be void. Each Shareholder agrees made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to authorize require public disclosure by any Person), (3) exercise rights as a holder of Series A Preferred Stock under the Parent Charter or any other Transaction Document or (4) in response to an unsolicited inquiry or proposal from any Person in respect of any action prohibited, or reasonably likely to be prohibited, by Section 7.16(a), to ascertain facts from the Person making such inquiry or proposal for the sole purpose of informing themselves about such inquiry or proposal and request the Company Person that made it and to notify refer such Person to this Section 7.16 and to limit its conversation or other communication exclusively to such referral and such ascertaining of facts; (ii) any Series A Director in taking any action as a member of the Company’s transfer agent that there is Parent Board, including, without limitation, voting or otherwise taking any action in respect of his or her legal duties or otherwise acting in his or her capacity as a stop transfer order with respect member of the Parent Board; or (iii) the Investors’ ability to all dispose of any of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action securities of the partiesParent, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock either publicly or voting interests shall automatically become subject to the terms of this Agreementprivately.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Investment and Transaction Agreement (Id Systems Inc), Investment and Transaction Agreement (Pointer Telocation LTD)
Standstill. (a) Each of Subject to Section 2.2 through Section 2.4, Priceline covenants and agrees with the Shareholders hereby agrees Company that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Priceline shall not, and shall cause its Subsidiaries not to, directly or indirectly, unless alone or in concert with others, without the prior written consent of the Company, take any of the actions set forth below (clauses (a) through (g) below, collectively, the “Priceline Standstill”):
(a) effect, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or knowingly assist, or vote in favor of or authorize, encourage or solicit any other Person to effect, offer or propose (whether publicly or otherwise) to effect or participate in (i) specifically requested by Parent or any acquisition of any Equity Securities (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership thereof) or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any material assets of the Company or any subsidiary of its Subsidiaries, including rights or division thereofoptions to acquire such ownership, (ii) any tender or exchange offer, merger, consolidation, amalgamation, scheme of arrangement, 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;
(vib) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in the rules of the Securities and Exchange CommissionSEC) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with any action contemplated by any of the foregoing;
(xd) seek, in subject to the rights of Priceline and any way which may be reasonably likely to require, involve or trigger public disclosure of such request its Subsidiaries pursuant to applicable Lawthis Agreement, the Transaction Agreements and the Marketing Agreement, otherwise act to have seek to control, influence or change the management, Board, governing instruments, shareholders, policies or affairs of the Company or any provision of this Section 3.1 amended, modified or waivedits Subsidiaries;
(xie) otherwise takeenter into any negotiations or arrangements with any third party, directly or indirectlyfinance any third party, with respect to any actions of the foregoing; or
(f) make any public disclosure inconsistent with the purpose of avoiding clauses (a) through (e), or circumventing take any provision of this Section 3.1 or which could action that would reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request require the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, make any additional shares of Company Common Stock or other voting interests public disclosure with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder matters set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementin clauses (a) through (e).
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Standstill Agreement (Priceline Group Inc.), Standstill Agreement (Priceline Group Inc.)
Standstill. Each Seller agrees that such Seller shall not (a) Each acting alone or in concert with others, seek to affect or influence the control of the Shareholders hereby agrees that, from and after the date hereof until the earlier management or board of the Effective Time directors of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or the business, operations or policies of Parent; (iib) expressly contemplated by the terms deposit any shares of this Agreement Parent Class A Common Stock or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign securities exercisable or otherwise dispose exchangeable or convertible into shares of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)Parent Class A Common Stock, or enter into other securities having the right to vote generally with shares of Parent Class A Common Stock (collectively "Parent Voting Securities") in a voting trust or subject any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of Parent Voting Securities to any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent arrangement or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale agreement with respect to the Common Stock voting of such Parent Voting Securities or substantially identical property other agreement having similar effect; (c) initiate or enter into propose any stockholder proposal or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way way, participate in, directly or indirectly, any “"solicitation” " of “"proxies” (as such terms are used in the rules of the Securities and Exchange Commission) " to vote, other than in connection with the Merger and the Merger Agreement, or intentionally seek in an organized fashion to advise or influence any Person person with respect to the voting of, any voting securities Parent Voting Securities in a manner inconsistent with the position of the Company board of directors of Parent or become "participant" in a "solicitation" (including by making publicly known as such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote terms are defined in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 Regulation 14A under the Exchange Act;
(viii, as in effect on the date hereof) make any public announcement in opposition to the recommendation of the majority of the directors of Parent with respect toto any matter; (d) join a partnership, limited partnership, syndicate or other group, or submit otherwise act in concert with any other person, for the purpose of acquiring, holding, voting or disposing of Parent Voting Securities, or, otherwise become a proposal for, or offer "person" within the meaning of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with Act relating to any of the foregoing;
matters set forth in clauses (xa), (b) seek, in or (c); or (e) take any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision other action inconsistent with this Section 9.10. The provisions of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, 9.10 shall not apply to any actions with Seller following such time after the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected Exchange as such Seller cease to have the effect of preventing, impeding, interfering with or adversely affecting the consummation beneficially own at least 25% of the transactions contemplated Exchange Shares acquired by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, Seller in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this AgreementExchange.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Stock Exchange Agreement (Designer Holdings LTD), Stock Exchange Agreement (Charterhouse Equity Partners Ii Lp)
Standstill. (a) Each of Subject to Section 2.2 through Section 2.4, Priceline covenants and agrees with the Shareholders hereby agrees Company that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Priceline shall not, and shall cause its Subsidiaries not to, directly or indirectly, unless alone or in concert with others, without the prior written consent of the Company, take any of the actions set forth below (clauses (a) through (f) below, collectively, the “Priceline Standstill”):
(a) effect, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or knowingly assist, or vote in favor of or authorize, encourage or solicit any other Person to effect, offer or propose (whether publicly or otherwise) to effect or participate in (i) specifically requested by Parent or any acquisition of any Equity Securities (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership thereof) or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any material assets of the Company or any subsidiary of its Subsidiaries, including rights or division thereofoptions to acquire such ownership, (ii) any tender or exchange offer, merger, consolidation, amalgamation, scheme of arrangement, 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;
(vib) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in the rules of the Securities and Exchange CommissionSEC) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with any action contemplated by any of the foregoing;
(xd) seek, in subject to the rights of Priceline and any way which may be reasonably likely to require, involve or trigger public disclosure of such request its Subsidiaries pursuant to applicable Lawthis Agreement, the Transaction Agreements and the Marketing Agreement, otherwise act to have seek to control, influence or change the management, Board, governing instruments, shareholders, policies or affairs of the Company or any provision of this Section 3.1 amended, modified or waivedits Subsidiaries;
(xie) otherwise takeenter into any negotiations or arrangements with any third party, directly or indirectlyfinance any third party, with respect to any actions of the foregoing; or
(f) make any public disclosure inconsistent with the purpose of avoiding clauses (a) through (e), or circumventing take any provision of this Section 3.1 or which could action that would reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request require the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, make any additional shares of Company Common Stock or other voting interests public disclosure with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder matters set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementin clauses (a) through (e).
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Standstill Agreement, Standstill Agreement (Priceline Group Inc.)
Standstill. (a) Each TPG hereby agrees that until the earliest of (i) such time as TPG and its Affiliates no longer collectively own at least five percent (5%) of the Shareholders hereby agrees thatoutstanding Common Stock on an as-converted basis, from and after (ii) the date fifth (5th) anniversary hereof until the earlier or (iii) a Change of Control of the Effective Time Company, without the prior written approval of the Merger and the termination Company, neither TPG nor any of the Merger Agreement, such Shareholder shall notits Affiliates will, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sellacquire, transferoffer or propose to acquire or agree to acquire, tenderBeneficial Ownership of any Voting Securities, pledgeother than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in this Agreement, encumber(B) upon conversion of the Preferred Stock, assign(C) pursuant to a stock split, hypothecatestock dividend, distributerecapitalization, grantreclassification or similar transaction, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwiseD) (collectively, a “Transfer”)directly from the Company, or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, (E) to restore their aggregate percentage interest in the record or beneficial ownership or both or voting power, of any or all Company’s outstanding Common Stock (assuming conversion of the Shareholder Owned SharesSeries E Preferred Stock, without taking into account any provisions restricting the convertibility thereof) if such percentage interest has been reduced for any reason, including as a result of a sale of Capital Stock by TPG and its Affiliates, provided that any such reduction has not resulted in TPG and its Affiliates collectively owning less than five percent (5%) of the outstanding Common Stock on an as-converted basis;
(ii) enter into any voting agreementor agree, proxyoffer, consent propose or power of attorney with respect toseek (whether publicly or otherwise) to enter into, or deposit into a voting trustotherwise be involved in or part of, any acquisition transaction, merger or other business combination relating to all or part of the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock Company or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of its subsidiaries or any acquisition transaction for all or part of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary of its subsidiaries or division thereofany of their respective businesses;
(viiii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Company Board solely with respect to any of the TPG Nominated Directors permitted by the terms hereof to serve on such Company Board, make, or in any way participate in, directly or indirectly, any such “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person person or entity with respect to the voting of, any voting securities Common Stock of the Company or any of its subsidiaries;
(including by making publicly known such Shareholder’s position on any matter presented iv) call or seek to shareholders), other than to recommend that shareholders call a meeting of the Common Stockholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company or any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities subsidiaries or assets;
(ix) initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange ActAct and the rules and regulations thereunder) in connection with respect to any of the foregoingVoting Securities;
(xv) seekdeposit any Securities of the Company into a voting trust, in or subject any way which may be reasonably likely Securities of the Company to require, involve any agreement or trigger public disclosure arrangement with respect to the voting of such request securities, or other agreement or arrangement having similar effect;
(vi) seek representation on the Company Board or a change in the composition of the Company Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent TPG, other than as expressly permitted pursuant to applicable Law, this Agreement; and
(vii) bring any action or otherwise act to have any provision contest the validity of this Section 3.1 amended5.1; provided, modified that nothing in clauses (ii), (iii), (iv) or waived;
(xivi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 5.1(a) shall apply to the TPG Nominated Director(s) solely in his or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation her capacity as a director of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (Company or to a trust for actions taken by TPG or any of its Affiliates to prepare the benefit of a family member) or TPG Nominated Directors to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company act in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)capacity.
(b) Any Transfer The limitations provided in violation Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 3.1(a5.1(b), but only so long as TPG or any of its Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) shall be void. Each Shareholder agrees on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to authorize and request acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Company Board or a duly constituted committee of the Company Board (a) to notify the Company’s transfer agent that there is solicit one or more proposals for a stop transfer order transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to all an unsolicited proposal for a transaction that, if consummated, would result in a Change of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned SharesControl.
(ciii) Prior on the decision by the Company Board to recommend that stockholders approve any action proposed by a Person pursuant to the termination filing of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, preliminary proxy statement by any additional shares of Company Common Stock or other voting interests Person with respect to the Company, such Shareholder shall notify Parent promptly commencement of such acquisition. Such shares of Company Common Stock a proxy or voting interests shall, without further action consent solicitation subject to Section 14 of the parties, be deemed Shareholder Owned Shares and subject Exchange Act to elect or remove any directors of the provisions Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution;
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject which breach has not been remedied within ten (10) days after notice to the terms of this Agreement.Company thereof; or
(dvi) Prior upon the failure by the Company to pay the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery Holders of the Merger Agreement by Preferred Stock any dividends due thereon for four (4) successive fiscal quarters; Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the approval termination of, an agreement to effect a Change of Control, or the Merger Agreement by the Company Board, breaches any fiduciary duty decision of the Company Board or a duly constituted committee of the Company Board to reject all such proposals, (w) the abandonment by the Company Board or a duly constituted committee of the Company Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (y) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), or (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any member thereof breach described in Section 5.1(b)(v) or which otherwise challenges the Merger payment to the Holders in full in cash (by wire transfer of immediately available funds) all dividends then due and owing in respect of the Preferred Stock held by such Holders as contemplated in Section 5.1(b)(vi), as the case may be, the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (Parkway Properties Inc), Securities Purchase Agreement (Parkway Properties Inc)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after Until the date hereof until that is the earlier to occur of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or the date that is five (5) years from the date of the Separation, and (ii) the date that is one (1) year following the Phase One Effective Date (as defined in the Offtake Agreement), the Investor will not, alone or in concert with others, without the prior written consent of Corporation or as otherwise expressly contemplated by the terms of permitted under this Agreement or the Merger Agreement:
(i) selleffect, transferseek, tenderoffer or propose, pledgeor in any way advise or encourage any other Person to effect, encumberseek, assignoffer or propose (in each case, hypothecatewhether publicly or otherwise):
(A) any take-over bid, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation amalgamation, plan of Law or otherwise) (collectivelyarrangement, a “Transfer”), or enter into any contract, option reorganization or other agreement business combination involving the Corporation or any of its assets;
(B) any recapitalization, restructuring, liquidation, dissolution, disposition of a material portion of the assets or other extraordinary transaction with respect to, to the Corporation or consent to, a Transfer of, the record or beneficial ownership or both or voting power, any of any or all of the Shareholder Owned Sharesits assets;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) indirectly make, or in any way participate in, directly or indirectly, any “solicitation” solicitation of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) proxies to vote, or seek to advise or influence any other Person with respect to the voting of, of any voting securities of the Company Corporation;
(including by making publicly known such Shareholder’s position on any matter presented iii) otherwise act in a manner to shareholders)seek to control the management, other than to recommend that shareholders Board or the policies of the Company vote Corporation beyond the board and committee representation provided in favor of the Merger and the Merger this Agreement;
(viiiv) submit to the Company enter into any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect toarrangements, understandings or agreements, whether written or oral, with, or submit a proposal foradvise, finance, aide, encourage or offer of (with or without conditions) act in concert with, any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) other Persons in connection with any of the foregoing;
(xv) seek, in make any way which may be reasonably likely public announcement of any intention to require, involve do or trigger take any of the foregoing or take any action that could require the Corporation to make a public disclosure announcement with respect to any of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;the foregoing; or
(xivi) otherwise take, directly attempt to induce any party not to make or indirectly, conclude any actions proposal with respect to the purpose of avoiding Corporation by threatening or circumventing indicating that Investor may take any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)foregoing actions.
(b) Any Transfer The Investor will not, alone or in violation concert with others, without the prior written consent of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request Corporation or as otherwise expressly permitted under this Agreement, Purchase any Equity Securities that would result in the Company to notify Investor owning, or exercising control over, more than 20% of the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned then outstanding Common Shares.
(c) Prior Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 4.4 shall not apply to any confidential offer or proposal made by the Investor or its Affiliates to the termination Board and shall no longer apply from the earliest of this Agreement (i) the date the Corporation enters into a definitive agreement with a third party that provides for an acquisition of, or business combination with, the Corporation where the securityholders of the Corporation would own less than 50% of the voting securities of the surviving Corporation, (ii) the date the Corporation enters into a definitive agreement with a third party that provides for an acquisition of all or substantially all of the assets of the Corporation; or (iii) the date a third party enters into a definitive agreement to acquire, or acquires, “beneficial ownership” (as such term is defined in accordance with its termsthe Securities Act (British Columbia), in as amended) of more than 50% of the voting securities of the Corporation. In the event that a Shareholder acquires record the proposed transaction in (i), (ii) or beneficial ownership of(iii) is terminated, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares limitations and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder prohibitions set forth on Schedule A hereto will in this Section 4.4 shall be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementreinstated.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Investor Rights Agreement (Lithium Americas Corp.), Investment Agreement (Lithium Americas Corp.)
Standstill. (a) Each of the Shareholders Recipient hereby agrees that, for a period of two years from and after the date hereof until the earlier of the Effective Time of the Merger hereof, Recipient and the termination of the Merger Agreementits Affiliates will not (and neither Recipient nor its Affiliates will assist, such Shareholder shall notor provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in concert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) specifically requested by Parent acquire or agree, offer, seek or propose to acquire (iior request permission to do so) expressly contemplated by the terms of this Agreement or the Merger Agreement:
ownership (i) sellincluding, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect but not limited to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) Rule 13d-3 under the Exchange Act) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or any option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or otherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain representation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or consents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of Protection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the foregoing;
; or (xviii) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, seek to have Protection One amend or waive any provision of this Section 3.1 amended6. Recipient agrees to advise Protection One promptly of any inquiry or proposal made to it with respect to any of the foregoing, modified unless Recipient declines to discuss such inquiry or waived;
(xi) otherwise take, directly or indirectly, any actions proposal with the purpose of avoiding or circumventing any provision party making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 3.1 6, neither it nor any of its Affiliates will, without the written consent of Protection One, take any initiative or which could reasonably be expected other action with respect to have the effect of preventing, impeding, interfering with Protection One or adversely affecting the consummation any of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability subsidiaries of Protection One that is reasonably likely to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, require Protection One to make a "Permitted Transfer"): public announcement regarding (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementinitiative or other action, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control any of the Shareholder Owned Shares so Transferred activities, events or (y) such transferee agrees circumstances referred to in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions preceding sentences of this AgreementSection 6, (iii) Transfers to the possibility of a third Transaction or any similar transaction between Protection One and any particular party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and or (iv) Transfers the possibility of Recipient or any other person acquiring control of Protection One, whether by means of a business combination or otherwise. Recipient represents to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect Protection One that neither it nor any of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer its Affiliates (other than a Permitted Transfer described individuals in clause their individual accounts and in de minimis amounts) owns (ivincluding, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Confidentiality Agreement (Protection One Inc), Confidentiality Agreement (Protection Acquisition Sub, Inc.)
Standstill. (a) Each Except as otherwise contemplated by this agreement, ---------- or unless the New Shareholder is invited to do otherwise by the Company's board of directors, during the Shareholders hereby agrees thatStandstill Period, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such New Shareholder shall not, and shall not permit any of its affiliates (within the meaning of Rule 12b-2 under the Exchange Act) (including, without limitation, ▇▇▇▇▇ ▇▇ and ▇▇▇▇▇'▇ Controlled Subsidiaries), or anyone acting on behalf of, or in concert with, the New Shareholder or any of its affiliates, to, directly or indirectly:
5.1 acquire, unless 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 (iwithin the meaning of section 13(d)(3) specifically requested by Parent 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 (iib) expressly contemplated by 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 Equity Securities;
5.3 solicit, or participate in any solicitation of, proxies or become a participant in any election contest (the terms of used in this Agreement or section 5.3 having the Merger Agreement:respective meanings given them in Regulation 14A under the Exchange Act) with respect to the Company;
(i) sell5.4 initiate, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign propose or otherwise dispose solicit shareholders for the approval of (whether by mergerone 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 directors of the Company, operation seek the removal of Law any member of the board of directors of the Company or otherwise) (collectively, seek to have called any meeting of the shareholders of the Company;
5.6 deposit any Equity Securities in a “Transfer”), voting trust or enter into subject any contract, option Equity Securities to a voting agreement or other agreement or arrangement with respect to voting;
5.7 otherwise act, alone or in concert with others, to seek to control the management, board of directors, policies or affairs of the Company or solicit, propose, seek to effect or negotiate with any other person or entity (including, without limitation, the Company) with respect to any form of business combination or other extraordinary transaction with the Company or any of its subsidiaries or any restructuring, recapitalization, similar transaction or other transaction not in the ordinary course of 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 consent toannounce an intent to make, a Transfer of, the record any tender offer or beneficial ownership or both or voting power, of exchange offer for any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect toEquity Securities, or deposit into a voting trustpublicly disclose an intent, the Shareholder Owned Shares;
(iii) enter into any short sale purpose, plan or proposal with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer Company, any of the economic interest in the Shareholder Owned Shares its subsidiaries or enter into any transaction that has such effect;
(v) acquire, offer to acquire, securities or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeof its subsidiaries, that would violate the provisions of this section 5, or in any way assist, participate in, directly facilitate or indirectly, solicit any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) effort or attempt by any person or entity to vote, do or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with do any of the foregoing;; or
5.8 request the Company (xor its directors, officers, employees or agents) seek, in any way which may be reasonably likely to require, involve amend or trigger public disclosure of such request pursuant to applicable Law, to have waive any provision of this Section 3.1 amendedsection 5 (including, modified without limitation, this section 5.8) or waived;
(xi) otherwise take, directly seek any modification to or indirectly, waiver of any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by agreements or obligations of the Merger AgreementNew Shareholder or its affiliates (including, including the Mergerwithout limitation, or such Shareholder’s ability to perform its obligations ▇▇▇▇▇ ▇▇ and Bayer's Controlled Subsidiaries) under this Agreementsection 5. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to foregoing sections 5.1 through 5.8 and during the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.Standstill Period:
Appears in 2 contracts
Sources: Shareholder Agreements (Schein Pharmaceutical Inc), Shareholder Agreements (Schein Pharmaceutical Inc)
Standstill. The Stockholder shall not, during the period commencing on the date of this Agreement and continuing for 12 months after the earlier of (a) Each of the Shareholders hereby agrees thatClosing Date and (b) the Expiration Date (such period, from and after the date hereof until the earlier of the Effective Time of “Standstill Period”), unless such action is expressly contemplated by the Merger Agreement or otherwise shall have been specifically invited in writing by the Parent Board (it being understood that execution of this Agreement by Parent does not constitute such an invitation), and the termination of the Merger Agreement, such Shareholder shall notStockholder will direct its Representatives not to, directly or indirectly:
(a) effect or seek, unless offer or propose (iwhether publicly or otherwise and whether or not subject to conditions) specifically requested by Parent to effect or (ii) expressly contemplated by the terms of this Agreement seek, or the Merger Agreementannounce any intention to effect or seek, or cause or otherwise participate in:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)any acquisition of, or enter into obtaining any contracteconomic interest in, option any right to direct the voting or disposition of, or any other agreement Right with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned SharesParent Common Stock;
(ii) enter into any voting agreementtender or exchange offer, proxyconsolidation, consent acquisition, merger, joint venture, business combination or power extraordinary transaction involving Parent or any of attorney with respect to, its Subsidiaries or deposit into all or a voting trust, material portion of the Shareholder Owned Sharesassets of Parent or any of its Subsidiaries (except that the Stockholder or its Representatives may affect or pursue an acquisition of any assets offered for sale by Parent or any of its Subsidiaries);
(iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock Parent or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;any of its Subsidiaries; or
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the rules SEC) or consents to vote any voting securities of the Securities and Exchange Commission) to voteParent or any of its Subsidiaries from any holder of any voting securities of Parent or any of its Subsidiaries, or seek to advise otherwise advise, assist or influence encourage any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on Parent or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(viib) submit to form, join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the Company any shareholder proposal under meaning of Rule 14a-8 13d-5(b)(l) promulgated under the Exchange Act) with respect to any voting or other securities of Parent or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Parent or any of its Subsidiaries or otherwise act in concert with any Person in respect of any such securities;
(viiic) call, request, or seek to have called any meeting of the stockholders of Parent or execute any written consent in lieu of a meeting of holders of any securities of Parent;
(d) otherwise seek, or propose to seek, representation on, or to control or influence, or to propose to control or influence, the Parent Board or the management, shareholders or policies of Parent or any of its Subsidiaries, or take any action to prevent or challenge any business combination or similar transaction to which Parent or any of its Subsidiaries is a party;
(e) request that Parent or any of its Representatives amend or waive any provisions of this Section 3.3, or make any public announcement with respect toto the restrictions of this Section 3.3 or any plan, arrangement or submit a proposal for, or offer of (intention with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with respect to any of the foregoing;actions restricted by this Section 3.3 or take any action, or make or permit its Representatives to take any action, that might force Parent or any of its Subsidiaries to make a public announcement or other public disclosure regarding any of the types of matters set forth in clause (a), (b), (c) or (d) above; or
(xf) seekadvise, in assist, or knowingly encourage, or direct any way which may be reasonably likely Person to requireadvise, involve assist or trigger public disclosure knowingly encourage any other persons with respect to any of such request pursuant to applicable Law, to have any provision of the conduct prohibited by this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement3.3. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): parties agree and acknowledge that (i) a pledge the Stockholder may vote its shares of Shareholder Owned Shares required under Parent Common Stock at any credit facility meeting of holders of Parent Common Stock in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound its sole discretion, and subject to the terms and provisions of this Agreement, (ii) Transfers nothing in this Section 3.3 shall apply to a family member potential or actual purchases or sales of a Shareholder oil and/or gas assets between the Stockholder (or to a trust or, for the benefit avoidance of a family member) or to a charitable organization if (x) doubt, any of its Affiliates), on the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementone hand, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options Parent or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits Subsidiaries, on the voting of its Shareholder Owned Sharesother hand.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Voting and Support Agreement (Chesapeake Energy Corp), Voting and Support Agreement (WildHorse Resource Development Corp)
Standstill. (a) Each of AIT and the Shareholders hereby agrees that, from and after HL Funds agree that for a period of twenty-seven (27) months following the date hereof until (the earlier of the Effective Time of the Merger and the termination of the Merger Agreement“Standstill Period”), such Shareholder shall notneither it nor any person acting on behalf of, or in concert with it, will, directly or indirectly, unless without Parent’s prior written consent, (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, agree to acquire, propose, seek or offer to acquire, any securities or assets of Parent or any of its subsidiaries, (ii) enter, agree to acquireenter, directly propose, seek or indirectlyoffer to enter into any merger, by purchase business combination, recapitalization, restructuring or otherwise, any assets of the Company other extraordinary transaction involving Parent or any subsidiary or division thereof;
of its subsidiaries, (viiii) make, or in any way participate or engage in, directly or indirectly, any “solicitation” solicitation of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) proxies to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Parent, (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixiv) form, join or in any way participate in a “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) with respect to any voting securities of Parent, except any “group” deemed to exist solely as a result of the Stock Consideration paid to AIT as part of the Merger Agreement, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of Parent, (vi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (vii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with any of the foregoing;
. Each of AIT and the HL Funds further agrees that during the Standstill Period none of such parties (nor any person acting on behalf of or in concert with such parties) will, without the written consent of Parent, (x) seek, in request Parent or any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeits representatives, directly or indirectly, any actions with the purpose of avoiding to amend or circumventing waive any provision of this Section 3.1 paragraph (including this sentence), or which could reasonably be expected (y) take any action that might require Parent to have make a public announcement regarding the effect possibility of preventinga business combination, impedingmerger or other type of transaction described in this paragraph with such party. Additionally, interfering with or adversely affecting for the consummation duration of the transactions contemplated Standstill Period, the HL Funds shall place and maintain Parent’s securities on HL’s “restricted securities” list, which securities shall be subject to HL’s restricted securities policy (the “Policy”). The HL Funds agree that such Policy shall: (1) prohibit the HL Funds and their managers, officers, directors, partners and other employees from acquiring, directly or indirectly, Parent securities, or entering into Transfers with respect to Parent securities, for their own account; (2) be strictly enforced by the Merger AgreementHL Funds without waiver or exemption; and (3) not be amended or modified as it pertains to Parent securities.
(b) For clarity, including nothing in this Section 7 shall be deemed to, in any way, restrict the Merger, ability of AIT or such Shareholder’s ability the HL Funds (or any other holder of the Shares) to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Transfer or otherwise distribute any Shares as specifically allowed (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory pursuant to the Parent to be bound Sections 1, 2, 3, and subject to the terms and provisions 6 of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory pursuant to the Parent to be bound Registration Rights Agreement and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if otherwise in the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Merger Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to AIT and the termination of HL Funds each shall be released from this Agreement in accordance with its terms, in Section 7 on the event that a Shareholder acquires record or beneficial ownership earlier of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action : (i) expiration of the parties, be deemed Shareholder Owned Shares and subject to Standstill Period; or (ii) the provisions of this Agreement, date on which AIT and the number HL Funds collectively hold less than twenty five percent (25%) of shares of Company Common the Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this AgreementConsideration.
(d) Prior Notwithstanding anything to the termination contrary contained in this Agreement, it is understood that the HL Funds are a full-service securities firm, and as such, may, from time to time, effect transactions for the account of its customers, hold positions in securities, provide investment banking and financing advice and otherwise conduct business in the ordinary course as a broker-dealer, investment adviser, block positioner or investment bank, and that this Agreement in accordance with its termsshall not be deemed or interpreted to prohibit, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Companyrestrict, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementlimit such business activities.
Appears in 2 contracts
Sources: Lock Up and Standstill Agreement (Ultra Clean Holdings Inc), Lock Up and Standstill Agreement (Ultra Clean Holdings Inc)
Standstill. (a) Each of the Shareholders hereby The Principal Stockholder agrees that, (i) from and after the date hereof until the earlier Closing Date and (ii) from and after the Closing Date for so long as he shall be a Restricted Stockholder up to and including the tenth anniversary of the Effective Time date of the Merger and the termination of the Merger this Agreement, such Shareholder he shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect and shall use his best efforts to cause his Affiliates not to, or without the prior written consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
board of directors of Acquiror, (iiA) enter into in any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) manner acquire, offer agree to acquire, acquire or agree make any proposal to acquire, directly or indirectly, any Equity Securities of Acquiror or any rights or options to acquire such Equity Securities (other than the shares of Acquiror Stock received by purchase him in the Merger and other than options granted to directors of Acquiror), (B) propose to enter into, directly or otherwiseindirectly, any a merger or other business combination involving Acquiror or propose to purchase, directly or indirectly, a material portion of the assets of the Company or any subsidiary or division thereof;
Acquiror, (viC) make, or in any way participate inparticipate, directly or indirectly, in, any “"solicitation” " of “"proxies” " (as such terms are used in Regulation 14A under the rules of the Securities and Exchange CommissionAct) to vote, vote or consent or seek to advise or influence any Person with respect to the voting of, any voting securities or granting of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement a consent with respect to, or submit a proposal forany Voting Securities of Acquiror, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixD) form, join or in any way participate in a “"group” " (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) for the purpose of acquiring, holding voting or disposing of any Equity Securities of Acquiror, (E) otherwise act, alone or in concert with others, to seek to control or influence in any public manner or public forum the management or policies of Acquiror; provided, however, that the foregoing shall not limit the ability to vote any shares of any Equity Securities of Acquiror, (F) disclose any intention, plan or arrangement inconsistent with the foregoing, (G) advise, assist (including by knowingly providing or arranging financing for that purpose) or encourage any other Person in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred foregoing or (yH) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that take any Shareholder effects a Permitted Transfer action (other than in exercising his registration rights under the Registration Rights Agreement) which might require Acquiror to make a Permitted Transfer described in clause (iv) public announcement regarding the possibility of a transaction between the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (Principal Stockholder and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer Acquiror (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions any of this Agreementtheir respective Affiliates).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Stockholder Agreement (Iron Mountain Inc /De), Stockholder Agreement (Dauten Kent P)
Standstill. (a) Each of the Shareholders hereby Investor agrees that, from and after the date hereof of this Agreement until the earlier expiration of the Effective Time Standstill Period (as defined below), without the prior written consent of a majority of the Merger Board specifically expressed in a written resolution, neither it nor any of its Related Persons (as defined herein) will, and the termination it will cause each of the Merger Agreement, such Shareholder shall notits Related Persons not to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementin any manner:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign propose or publicly announce or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), publicly disclose an intent to propose or enter into or agree to enter into, singly or with any contractother person, option directly or indirectly, (x) any form of business combination or acquisition or other agreement transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries, (y) any form of restructuring, recapitalization or similar transaction with respect toto the Company or any of its subsidiaries or (z) any form of tender or exchange offer for the Common Stock, whether or consent to, not such transaction involves a Transfer of, the record or beneficial ownership or both or voting power, change of any or all control of the Shareholder Owned SharesCompany;
(ii) enter into engage in any solicitation of proxies or written consents to vote any voting agreementsecurities of the Company, proxy, consent or power of attorney conduct any non-binding referendum with respect toto any voting securities of the Company, or deposit into assist or participate in any other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any voting securities of the Company, or otherwise become a voting trust“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 Shareholder Owned SharesExchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board, except as otherwise permitted under Section 2(c) of this Agreement;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any assets additional securities of the Company or any subsidiary rights decoupled from the underlying securities of the Company representing in the aggregate (amongst all of the Investors and any Affiliate or division Associate thereof) in excess of 15% of the shares of Common Stock outstanding;
(iv) seek to advise, encourage or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner in accordance with Section 2;
(v) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Investors to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company, or (D) an Affiliate or Associate of the Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate in excess of 5% of the shares of Common Stock outstanding at such time;
(vi) makeengage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or in any way participate inother similar right (including, directly or indirectlywithout limitation, any put or call option or “solicitationswap” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commissiontransaction) to vote, or seek to advise or influence any Person with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the voting of, any voting market price or value of the securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementCompany;
(vii) submit except as otherwise set forth in this Agreement, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any shareholder proposal under Rule 14a-8 under person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public announcement with respect tocall or seek to call, or submit request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of meeting is permitted by the Company’s securities Amended and Restated Certificate of Incorporation or assetsBylaws, including, but not limited to, a “town hall meeting;”
(ix) seek, alone or in concert with others, representation on the Board, except as expressly permitted by this Agreement;
(ixx) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign;
(xi) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock (other than any such voting trust, arrangement or agreement solely among the members of the Investor Group that is otherwise in accordance with this Agreement);
(xii) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors of the Company or with respect to the submission of any stockholder proposals (including any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act); provided, however, that nothing in this Agreement shall prevent the Investors or their Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2018 Annual Meeting so long as such actions do not create a public disclosure obligation for the Investors or the Company and are not publicly disclosed by the Investors or their Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with the Investors’ normal practices in the circumstances;
(xiii) form, join or in any other way participate in a any “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) with respect to the Common Stock (other than the Investor Group); provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of the Investor Group to join the Investor Group following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound in writing by the terms and conditions of this Agreement;
(xiv) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 220 of the Delaware General Corporation Law (the “DGCL”) or pursuant to any other statutory right;
(xv) commence, encourage, or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors in order to, directly or indirectly, effect any of the actions expressly prohibited by this Agreement or cause the Company to amend or waive any of the provisions of this Agreement; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Investor from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) exercising statutory dissenters, appraisal or similar rights under the DGCL; provided, further, that the foregoing shall also not prevent the Investors from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted in this Section (3)(a)(xv);
(xvi) disclose publicly or privately, in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xvii) enter into any negotiations, agreements or understandings with any person or entity with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xxviii) seek, in make any way which may request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably likely determined to require, involve or trigger public disclosure obligations for any party;
(xix) take any action challenging the validity or enforceability of such request pursuant any of the provisions of this Section 3 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to applicable Lawany journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to have either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section 3.1 amended, modified or waived;3; or
(xixx) otherwise take, directly or indirectlysolicit, cause or encourage others to take, any actions action inconsistent with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. foregoing.
(b) Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member Section 3 shall not limit in any respect the actions of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control any director of the Shareholder Owned Shares so Transferred Company (including, but not limited to, the New Director) in his or (y) her capacity as such, recognizing that such transferee agrees in writing reasonably satisfactory to the Parent to be bound and actions are subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers such director’s fiduciary duties to the Company in such amounts as are necessary and its stockholders (it being understood and agreed that neither the Investors nor any of their Affiliates or Associates shall seek to satisfy do indirectly through the withholding taxes due in respect of settlement of stock options or stock grants. In the event New Director anything that would be prohibited if done by any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentenceInvestors or their Affiliates and Associates directly). For the avoidance of doubt, including no provision in connection with a Shareholder Owned Shares Proposal (subject to compliance with this Section 3.3(b)), such Shareholder shall promptly (and 3 or elsewhere in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on shall prohibit privately-negotiated transactions in the voting of its Shareholder Owned SharesCommon Stock solely between or among the Investors.
(c) Prior to the termination of this Agreement As used in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, the terms “Affiliate” and “Associate” shall have the number respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially own,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including, without limitation, pursuant to a cash settled call option or other derivative security, contract or instrument in any way related to the price of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to Stock; the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of this Agreementany kind or nature; and the term “Related Person” shall mean, as to any person, any Affiliates or Associates of such person.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (VIEX Capital Advisors, LLC), Cooperation Agreement (Immersion Corp)
Standstill. From the date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this Section 10 terminate pursuant to the terms of this Agreement (a) Each such period, the “Restricted Period”), each member of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Investor Group shall not, and shall cause its Affiliates and Associates (collectively, the “Restricted Persons”) not to, directly or indirectly, unless (i) specifically requested by Parent absent prior express written invitation or (ii) expressly contemplated authorization by the terms of this Agreement or the Merger AgreementBoard:
a. engage in any “solicitation” (i) sellas such term is defined under the Securities Exchange Act of 1934, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of as amended and the rules promulgated thereunder (whether by merger, operation of Law or otherwise) (collectively, a the “TransferExchange Act”), ) of proxies or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale consents with respect to the Common Stock election or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any removal of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company directors or any subsidiary other matter or division thereof;
(vi) make, proposal or in any way participate in, directly or indirectly, any become a “solicitation” of “proxiesparticipant” (as such terms are used term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the rules Exchange Act) in any such solicitation of the Securities and Exchange Commission) to voteproxies or consents;
b. knowingly encourage, or seek to advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter or as otherwise permitted by this Agreement);
c. form, join or act in concert with any partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act and the rules promulgated thereunder, with any entity or person unaffiliated with the Investor Group and with respect to any Voting Securities;
d. make or in any way participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Investor Group or any of its Affiliates or Associates from tendering (or failing to tender) shares, receiving payment or other consideration for shares, voting its shares “for” or “against” any Extraordinary Transaction, or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(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 voting securities candidate to the Board (except as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board, (iii) request that, or knowingly encourage any Person to request that, the Company call any meeting of the Company’s stockholders, (including by making publicly known such Shareholder’s position on iv) present any matter presented to shareholders), other than to recommend that shareholders at any meeting of the Company vote in favor Company’s stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a referendum of the Merger Company’s stockholders; provided, however, that nothing in this Agreement shall prevent any member of the Investor Group or any of their Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for the Investor Group or the Company and the Merger Agreementare undertaken on a basis reasonably designed to be confidential;
f. make or be the proponent of any stockholder proposal (vii) submit pursuant to the Company any shareholder proposal under Rule 14a-8 under the Exchange ActAct or otherwise);
(viii) g. make any request for stock list materials or other books and records of the Company under the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
h. except as set forth in this Agreement, make any public announcement proposal with respect to, or submit a proposal for, or offer of to (with or without conditionsi) any extraordinary transaction involving an acquisition change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s securities management, business or assetscorporate structure, or (iv) any waiver, amendment or modification to the Company’s Fourth Amended and Restated Certificate of Incorporation (as may be amended from time to time, the “Charter”) or Bylaws, or other actions which may impede the acquisition of control of the Company by any Person;
i. enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investor Group or any member thereof is prohibited from taking pursuant to this Section 10; j. institute, solicit, knowingly assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current, former or future directors or officers (ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Actincluding derivative actions) in connection with order to effect or take any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of actions expressly prohibited by this Section 3.1 amended10; provided, modified or waived;
(xi) otherwise takehowever, directly or indirectly, any actions with that for the purpose avoidance of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoingdoubt, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): foregoing shall not prevent any Restricted Person from (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on bringing litigation to enforce the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementRestricted Person, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory bringing bona fide commercial disputes that do not relate to the Parent to be bound and subject to the terms and provisions matter of this Agreement, and Agreement or (iv) Transfers exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process (and the Company agrees that this Section 10(j) shall apply mutatis mutandis to the Company and its directors, officers and employees (in each case, acting in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (ivcapacity) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests Affiliates with respect to the Investor Group in connection with the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of ’s obligations set forth in the parties, be deemed Shareholder Owned Shares and subject to the provisions penultimate paragraph of this AgreementSection 10); or
k. make any public request or submit any public proposal, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock directly or voting interests shall automatically become subject indirectly, to amend or waive the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court each case which would reasonably be expected to result in a public announcement of such request or before any Governmentproposal; provided, which alleges that the execution and delivery restrictions in this Section 10 shall terminate automatically upon the earliest of (i) any breach of a material right of the Merger Agreement by the Company, or the approval of the Merger Investor Group under this Agreement by the Company Board(including, breaches without limitation, a failure to appoint the New Director in accordance with Section 1) upon five (5) business days’ written notice by any fiduciary duty of the members of the Investor Group to the Company if such breach has not been cured within such notice period, provided that the Investor Group is not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period, (ii) the Expiration Date, (iii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, or (iv) the commencement of any tender or exchange offer (by a person other than a member of the Investor Group or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer. During the Restricted Period, the Company shall not adopt and shall not propose the adoption of any amendment to the Charter or Bylaws that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future annual meeting of stockholders of the Company, and nothing contained in this Section 10 shall prevent the Investor Group from (i) privately communicating with the Company or the Board regarding any matter, (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, (iii) communicating with stockholders of the Company Board and others in a manner that does not otherwise violate this Section 10 or Section 11 or (iv) taking any action necessary to comply with any law, rule or regulation or any member thereof action required by any governmental or which otherwise challenges regulatory authority or stock exchange that has jurisdiction over the Merger AgreementInvestor Group. Nothing in this Agreement shall prevent (a) the Company from responding to such Investor Group statements described in clause (ii) of the preceding sentence, subject to the obligations of the Parties under Section 11, or (b) the Company or the Investor Group from making any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by the Investor Group or any of its Affiliates or by the Company or any of its Affiliates, as applicable). Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director in the exercise of his rights or fiduciary duties under applicable law as a director of the Company.
Appears in 2 contracts
Sources: Cooperation Agreement (OptiNose, Inc.), Cooperation Agreement (OptiNose, Inc.)
Standstill. (a) Each During the Standstill Period, each Stockholder agrees that it and its Affiliates will not, without the prior written consent of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notSpecial Committee, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(va) acquire, offer offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (but excluding any Excluded Acquisition), Beneficial Ownership of any assets Voting Stock if after giving effect to such acquisition such Stockholder would Beneficially Own more than 35% of the Company or any subsidiary or division thereofthen outstanding shares of Voting Stock;
(vib) make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission) to voteSEC), or seek to advise or influence any Person with respect to the voting ofof any Voting Stock, other than, with respect to any voting securities Stockholder that is serving as an officer or director of the Company (including by making publicly known Buyer, in such ShareholderStockholder’s position on any matter presented to shareholders), other than to recommend that shareholders capacity as an officer or director of the Company vote Buyer; provided, that, the Stockholders (together, and not individually) may seek to nominate and have elected in favor any such context the lessor of (i) one-third of the Merger members of the Board of Directors of the Buyer and (ii) the Merger Agreementnumber of members of the Board of Directors of the Buyer equal to the product of (x) the total number of members of the Board of Directors and (y) the aggregate percentage of then outstanding shares of Voting Stock that such Stockholders Beneficially Own, rounded down to the nearest whole number;
(viic) separately or in conjunction with any other Person submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit stockholders of Buyer a proposal for, for or offer of (with or without conditions) ), any extraordinary transaction involving an acquisition of the Company’s securities Extraordinary Transaction in which it is or assetsproposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation;
(ixd) form, join or in any way participate in a “group” 13D Group (other than any Permissible Group Activities);
(e) present at any annual meeting or any special meeting of the Buyer’s stockholders or through action by written consent any proposal for consideration for action by stockholders or propose nominees for election to the Board that would constitute in excess of the lessor of (i) one-third of the members of the Board of Directors of the Buyer and (ii) the number of members of the Board of Directors of the Buyer equal to the product of (x) the total number of members of the Board of Directors and (y) the aggregate percentage of then outstanding shares of Voting Stock that such Stockholders Beneficially Own, rounded down to the nearest whole number, or seek the removal of a majority of the members of the Board;
(f) except as defined may be permitted by this section, grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in Section 13(d)(3the Buyer’s proxy card for an annual meeting or a special meeting) under the Exchange Act) in connection with or deposit any of the foregoingVoting held by such Stockholder in a voting trust or subject them to a voting agreement or other arrangement of similar effect;
(xg) seekmake or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) in support of or against any way which may be reasonably likely to requiresolicitation described in clause (b) above, involve except as provided in (b) and (e) above;
(h) request the Buyer or trigger public disclosure any of such request pursuant to applicable Lawits representatives, directly or indirectly, to have amend or waive any provision of this Section 3.1 amended, modified 6.1; provided that any Stockholder may confidentially request the Buyer to amend or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing waive any provision of this Section 3.1 or which could 6.1 in a manner that would not be reasonably be expected likely to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated require public disclosure by the Merger Agreement, including the Merger, Buyer or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Stockholder;
(i) a pledge of Shareholder Owned Shares except as may be required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementby law, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementdisclose, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all matters considered at any meeting of stockholders of the Buyer, if such Stockholder voted its Shareholder Owned Shares and that this Agreement places limits shares contrary to the recommendation of the Board of Directors of the Buyer on the voting of its Shareholder Owned Shares.any matter; or
(cj) Prior direct, instruct assist or encourage any other Person to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, take any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementaction.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Voting and Standstill Agreement, Voting and Standstill Agreement (Arbor Realty Trust Inc)
Standstill. (a) Each Subject to Section 5.04(b), from the Closing Date until the second anniversary of the Shareholders hereby agrees thatClosing Date (the “Standstill Period”), from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Seller shall not, and shall not permit any of its Subsidiaries (or any successor to Seller, whether by merger, consolidation, share exchange or other business combination transaction), directly or indirectly, unless to, without Buyer’s prior written consent, (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, agree to acquire, propose or offer to acquire, or facilitate the acquisition or ownership of, any Buyer Stock, other than as provided for in this Agreement, or any other securities or assets of Buyer or any of its Subsidiaries, (ii) deposit any shares of Buyer Stock in a voting trust or similar arrangement or subject any shares of Buyer Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any shares of Buyer Stock to any Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) (other than Buyer or a Person specified by Buyer in a proxy card provided to Seller by or on behalf of Buyer), (iii) enter, agree to acquireenter, directly propose or indirectlyoffer to enter into or facilitate any merger, by purchase business combination, recapitalization, restructuring, change in control transaction or otherwise, any assets of other extraordinary transaction involving the Company Buyer or any subsidiary or division thereof;
of its Subsidiaries, (viiv) make, or in any way participate or engage in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) to vote, or seek to advise or influence any Person person with respect to the voting of, any voting securities of Buyer or its Subsidiaries, (v) call, or seek to call, a meeting of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company Buyer or initiate any shareholder proposal under Rule 14a-8 under the Exchange Act;
for action by shareholders of Buyer, (viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixvi) form, join or in any way participate in a “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) with respect to any voting securities of Buyer, (vii) otherwise act, alone or in concert with others, to seek to Control or influence the management or the policies of Buyer, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. Seller further agrees that, during the Standstill Period, neither Seller nor any of its Affiliates (nor any Person acting on behalf of or in concert with Seller or any of its Affiliates) shall, without the foregoing;
written consent of Buyer, (x) seekrequest Buyer, in any way which may be reasonably likely to require, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend or waive any provision of this Section 3.1 amended, modified or waived;
5.04(a) (xiincluding this sentence) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory take any action that might require Buyer to make a public announcement regarding the Parent to be bound and subject to the terms and provisions possibility of this Agreementa business combination, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions merger or other type of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer transaction described in clause (ivthis Section 5.04(a) with Seller or any of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).its Affiliates
(b) Any Transfer The restrictions contained in violation of Section 3.1(a5.04(a) shall be void. Each Shareholder agrees not apply to authorize any brokerage, investment advisory, financial advisory, anti-raid advisory, merger advisory, financing, proprietary and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all third party asset management, derivatives transactions, investment activities, insurance service and activities, trading, market making, underwriting, arbitrage or other similar activities conducted by Seller or any of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, Affiliates in the event ordinary course of their respective businesses; provided that a Shareholder acquires record or beneficial ownership of, or the power purpose of any such action by such parties is not to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to avoid the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this AgreementSection 5.04(a).
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Transaction Agreement (Morgan Stanley), Transaction Agreement (Invesco Ltd.)
Standstill. (a) Each of Until the Shareholders hereby agrees thatTermination Date, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Engaged Group shall not, and shall cause each of its Affiliates and Associates not to, directly or indirectly, unless in any manner, alone or in concert with others, in each case without the prior written waiver authorized by the Board:
(a) (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sellacquire, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)cause to be acquired, or enter into any contractoffer, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or other Synthetic Equity Interests, or otherwise (the taking of any such action, an “Acquisition”), beneficial ownership of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities) such that after giving effect to any such Acquisition, the Engaged Group or any of its Affiliates and Associates holds, directly or indirectly, in excess of 9.9% of the Voting Securities, (ii) acquire, cause to be acquired or offer, seek or agree to acquire, whether by purchase or otherwise, any assets interest in any indebtedness of the Company or (iii) acquire, cause to be acquired or offer, seek or agree to acquire, ownership (including beneficial ownership) of any asset or business of the Company or any subsidiary right or division thereofoption to acquire any such asset or business from any person, in each case other than securities of the Company;
(b) except as otherwise provided in Section 1, (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board or take any action in respect of the removal of any director, (ii) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director, (iii) submit, or seek or knowingly encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) publicly seek to amend any provision of the Charter, the Bylaws, or other governing documents of the Company (each as may be amended from time to time), or (vi) maketake any action similar to the foregoing with respect to any subsidiary of the Company; provided, however, that nothing in this Agreement shall prevent the Engaged Group or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the Company’s 2024 annual meeting of stockholders (the “2024 Annual Meeting”) so long as such actions do not create a public disclosure obligation for the Engaged Group or the Company and are undertaken on a basis reasonably designed to be confidential as between the Company and the Engaged Group or between the Engaged Group and persons whom it contacts as potential director candidates in connection with the 2024 Annual Meeting;
(c) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become 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, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of any proxy, consent or other authority to vote any Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the foregoing shall not restrict the Engaged Group from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 2 and the reasons therefor;
(d) (i) grant any proxy, consent or other authority to vote with respect to any matters other than to the named proxies included in the Company’s proxy card for any Stockholder Meeting or as otherwise permitted by the provisos in Section 2 or (ii) deposit or agree or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any agreement or arrangement with respect to the voting of such securities (including a voting agreement or pooling arrangement), other than (A) any such voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent or other authority to vote in connection with a solicitation made by or on behalf of the Company or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(e) knowingly encourage, advise or influence any person or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no,” or similar campaign), in each case other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter or permitted by Section 3(c) with respect to an Extraordinary Transaction;
(f) without the prior written approval of the Board, separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly propose, suggest or recommend, or in a manner that the Engaged Group is required under applicable law, rule or regulation to disclose publicly, any Extraordinary Transaction; provided, however, that nothing in this Section 3 shall be interpreted to prohibit the Engaged Group from proposing, suggesting or recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person;
(g) form, join, encourage the formation of, or in any way participate inin any partnership, directly limited partnership, syndicate or indirectly, any “solicitation” group (within the meaning of “proxies” (as such terms are used in the rules Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities (other than a group that includes all or some of the members of the Engaged Group, but does not include any other entities or persons that are not members of the Engaged Group as of the date hereof; provided that nothing herein shall limit the ability of an Affiliate of the Engaged Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and Exchange Commissionconditions of this Agreement);
(h) make or publicly advance any request or proposal to voteamend, modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement; provided that the Engaged Group may make confidential requests to the Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person;
(i) make a request for a list of the Company’s stockholders or for any books and records of the Company pursuant to Section 220 of the Delaware General Corporation Law; or
(j) enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage, assist, solicit, seek, or seek to advise or influence cause any Person person to undertake any action inconsistent with respect this Section 3. Notwithstanding anything in this Agreement to the voting ofcontrary, the foregoing provisions of this Section 3 shall not be deemed to restrict the Engaged Group from: (i) communicating privately with the Board or any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) formofficers regarding any matter, join or in so long as such communications are not intended to, and would not reasonably be expected to, require any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementcommunications, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control communicating privately with stockholders of the Shareholder Owned Shares so Transferred Company and others in a manner that does not otherwise violate this Section 3 or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementSection 6, or (iii) Transfers making any public disclosure necessary to a third party if comply with any Legal Requirement (as defined below). Furthermore, for the transferee agrees avoidance of doubt, nothing in writing reasonably satisfactory this Agreement shall be deemed to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to restrict in any way the Company directors in such amounts the exercise of their fiduciary duties under applicable law as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) directors of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)Company.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (Quotient Technology Inc.), Cooperation Agreement (Engaged Capital LLC)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after From the date hereof until through the earlier Standstill Termination Date, no Holder shall, and each Holder agrees to cause each member of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not▇▇▇▇▇▇▇ Group not to, directly or indirectly, unless : (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sellmake, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeengage in, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the Commission’s proxy rules but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote or otherwise solicit consents from or conduct any referendum of shareholders, (ii) call, seek to call, direct or request any meeting of shareholders of the Securities and Exchange CommissionCompany, (iii) to vote, submit or seek to advise or influence be the proponent of any Person with respect to the voting of, proposal for consideration at any voting securities meeting of shareholders of the Company (including by making publicly known such Shareholder’s position pursuant to Rule 14a-8 promulgated under the Exchange Act), (iv) seek representation on the Board, seek the removal of any member of the Board or otherwise act, alone or in concert with others, to seek to control or influence the management, Board or policies of the Company; provided, however, that nothing herein will limit the ability of the ▇▇▇▇▇▇▇ Group to nominate a replacement director(s) in accordance with Section 1.02 hereof, (v) engage in any course of conduct with the purpose of causing other Company shareholders to vote contrary to the recommendation of the Board on any matter presented to shareholders)them for a vote; provided however, other than such restriction shall not apply to recommend any proposals that have been presented to shareholders for a vote prior to the Standstill Termination Date that are related to a merger, acquisition or disposition of all or substantially all of the assets of the Company vote in favor of or other business combination involving the Merger and the Merger Agreement;
Company, (vi) make any request for any stockholder list or Company records, (vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join join, encourage, influence, advise or in any way participate in a any “partnership, limited partnership, syndicate or other group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) in connection with respect to any securities of the Company or otherwise deposit or subject any securities of the Company to any voting trust or arrangement or agreement with respect to the voting thereof; provided, however, such restrictions shall not apply to any “group” comprised solely of all or some lesser number of Holders, (viii) effect, seek, offer or propose any tender or exchange offer, merger, business combination, recapitalization, liquidation or other extraordinary transaction involving the Company or its subsidiaries, (ix) sell, offer or agree to sell, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying common stock of the Company held by the Holders to any third party, (x) enter into any discussions, negotiations, arrangements or understandings with any Person other than the Company with respect to any of the foregoing;
(x) seek, in advise, assist, encourage or seek to persuade or influence others to take any way which may be reasonably likely action with respect to require, involve any of the foregoing or trigger public disclosure announce any plan or proposal to take any action with respect to any of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified the foregoing or waived;
(xi) otherwise take, directly publicly request any waiver or indirectly, amendment of any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)foregoing provisions.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Zix Corp), Shareholder Agreement (Rockall Emerging Markets Master Fund LTD)
Standstill. As of the Effective Date, except as previously disclosed to the Company in writing, the Investor and its Subsidiaries do not beneficially own any securities of NII entitled to be voted generally in the election of directors or any direct or indirect options or other rights to acquire any such securities (“NII Securities”). From the Effective Date and so long as the provisions of this Section 6.11 are in effect, except as specifically requested in writing by NII, none of the Investor or its Affiliates or any of the advisors to the Investor, (a) Each of the Shareholders hereby agrees thatwill publicly propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, singly or with any other Person or directly or indirectly, unless (i) specifically requested by Parent any form of business combination, acquisition or other similar transaction relating to NII or any of its material Subsidiaries, (ii) expressly contemplated by the terms any form of restructuring, recapitalization or similar transaction with respect to NII or any of its material Subsidiaries, or (iii) any demand, request or proposal to amend, waive or terminate this Agreement Section 6.11; and (b) singly or the Merger Agreement:
with any other Person or directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)acquire, or enter into any contractoffer, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, propose or agree to acquire, directly or indirectlyby tender offer, by purchase or otherwise, NII Securities (including acquisition of beneficial ownership of any assets NII Securities or of any derivative positions or contracts, except any hedging activity or pursuant to the Company Call Agreement, whether or not cash settled, based on the value of any NII Securities) or any subsidiary material assets, indebtedness or division thereof;
businesses of NII, (viii) make, or in any way actively participate in, directly any solicitation of proxies with respect to any NII Securities (including by the execution of action by written consent), (iii) participate in a program or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) organized effort to vote, or seek to advise or influence any Person person with respect to the voting of, or disposition of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect toNII Securities, or submit a proposal for, or offer of (with or without conditionsiv) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under or actively encourage the Exchange Act) in connection with formation of any partnership, syndicate or other group that owns or seeks or offers to acquire beneficial ownership of the foregoing;
(x) seekany NII Securities or material assets, in any way which may be reasonably likely to require, involve indebtedness or trigger public disclosure businesses of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified NII or waived;
(xi) otherwise take, directly or indirectly, any actions with for the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably 6.11; ***. The provisions of this Section 6.11 shall terminate and be expected to have of no further effect on the effect earlier of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement***, (ii) Transfers the time, if any, when NII enters into a definitive agreement providing for a merger, consolidation or other business combination transaction or commences a process by which it proposes to a family member sell or dispose of a Shareholder itself or substantially all of its assets (or to a trust for any business or Subsidiary, in which case the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementSection 6.11 shall no longer apply with respect to such business or Subsidiary), (iii) Transfers to the time, if any, when a tender offer or exchange offer is commenced by a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions Person for equity securities of this AgreementNII, and or (iv) Transfers on the later of (A) the date on which the Investor and its Subsidiaries no longer own over 5% of the issued and outstanding NII Shares and (B) the date that is six months after the rights granted to the Company in such amounts as are necessary Investor pursuant to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereofArticle 7, including the identity Special Approval Rights, have terminated. The foregoing shall in no way impact Investor’s rights to acquire, register or dispose of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement NII Securities as contemplated by the Company, Transaction Documents or Investor’s other rights under the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger AgreementTransaction Documents.
Appears in 2 contracts
Sources: Investment and Securities Subscription Agreement (Grupo Televisa, S.A.B.), Investment and Securities Subscription Agreement (Nii Holdings Inc)
Standstill. (a) Each During the period beginning on the date of this Agreement and ending on the Standstill Termination Date, except as permitted by the Board in its sole discretion subject to clause (vii) below), at any time the Investor and its Affiliates and Related Persons collectively beneficially own nine and nine-tenths percent (9.9%) or more of the Shareholders hereby agrees thatissued and outstanding Shares (the “Standstill Effectiveness Period”), from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Investor shall not, and shall cause its controlled Affiliates and shall direct the Related Persons not to, and shall not facilitate or encourage any other Person to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementin any manner:
(i) sellsubject to Section 3(b), transfereffect any acquisition of ownership (including by operation of law and including the acquisition of the right to vote or direct the voting of any Common Shares) of Common Shares or securities exercisable, tenderexchangeable or convertible into Common Shares; provided, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign that this clause (i) shall not limit or otherwise restrict (subject to Section 5 and any restrictions on transfer applicable to the Investor, its Affiliates and Related Persons in any other agreement or instrument) the ability of the Investor or any of its Affiliates or Related Persons to dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all securities of the Shareholder Owned Shares;Company.
(ii) enter into effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any voting agreementintention to effect or otherwise participate in, proxyany tender offer, consent take-over bid, amalgamation, plan of arrangement, merger, exchange offer, consolidation, business combination, recapitalization, restructuring or power other similar transaction involving the Company or any of attorney with respect its Subsidiaries (or any of their respective assets) or take any action which would, or would reasonably be expected to, result in or deposit into a voting trustrequire public disclosure regarding any of the types of matters set forth in this clause (ii); provided, that this clause (ii) shall not limit or otherwise restrict the Shareholder Owned Sharesability of the Investor or any of its Affiliates or Related Persons to (A) tender or sell securities of the Company in any such transaction or (B) vote Common Shares or Preferred Shares beneficially owned by the Investor or any of its Affiliates or Related Persons in connection with any such transaction;
(iii) enter into any short sale with respect to the Common Stock (A) effect or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquireseek, offer or propose (whether publicly or otherwise) to acquireeffect, or agree announce any intention to acquire, directly effect or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way otherwise participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) to votevote for, or seek to advise or influence any Person in connection with respect to the voting of, any voting securities the election of directors not nominated by the Company Board, (including by making publicly known such Shareholder’s position on any matter presented to shareholders)B) solicit, other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, encourage or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takefacilitate, directly or indirectly, any actions third party to engage in any such solicitation for the election of directors not nominated by the Board, (C) make any public statement (or statement to another shareholder of the Company or statement which would, or would reasonably be expected to, result in or require public disclosure) in support of any such third-party solicitation for the election of directors not nominated by the Board or (D) seek or propose the election or appointment of any person to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or seek or propose the removal of any member of the Board;
(iv) (A) call, request the calling of, or otherwise seek or assist in the calling of a meeting of the shareholders of the Company or (B) seek, propose or submit, any proposal or matter of business (whether binding or not) to be considered or voted upon at a meeting of the shareholders of the Company, including pursuant to Rule 14a-8 under the Exchange Act or submit, or participate in, any “shareholder access” proposal;
(v) publicly seek or propose to influence or control the management or policies of the Company (or take any action which would, or would reasonably be expected to, result in or require public disclosure regarding any of the types of matters set forth in this clause (v));
(vi) have or disclose any intention, plan or arrangement prohibited by, or inconsistent with the purpose of avoiding foregoing or circumventing advise, assist or encourage or enter into discussions, negotiations, agreements or arrangements with any other Persons in connection with the foregoing;
(vii) request that the Company (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this Section 3.1 3(a) (including this sentence), in a manner that would, or which could would reasonably be expected to, result in or require public disclosure of such request; or
(viii) agree or commit to have the effect of preventing, impeding, interfering with or adversely affecting the consummation any of the transactions contemplated by the Merger Agreementforegoing; provided, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): that nothing in clause (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, or clause (ii) Transfers shall prohibit the Investor or any of its Affiliates or Related Persons from acquiring or offering to acquire, directly or indirectly, securities of any Person who beneficially owns Shares so long as (i) such Person owns less than 5% of the outstanding Common Shares and such Common Shares constitute less than 20% of such Person’s assets or (ii) such Person is a family member passive institutional investor or other passive investment vehicle or entity, with the investment in the underlying Common Shares being part of a Shareholder (or to a trust for the benefit portfolio managed on behalf of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company all investors in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)investment.
(b) Any Transfer Notwithstanding the prohibition set forth in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms3(a)(i), in the event that a Shareholder acquires record or the Investor’s and its Affiliates’ and Related Persons’ collective beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to Fully Diluted Equity Outstanding decreases below the provisions of this Agreement, and Maximum Percentage Ownership after the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination date of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery by reason of the Merger Agreement (x) a sale of Shares by the Company, Investor or the approval any of the Merger Agreement its Affiliates or Related Persons to a third party or (y) an issuance or sale of Shares by the Company Boardin which the Investor’s and its Affiliates’ and Related Persons’ collective beneficial ownership is diluted, breaches any fiduciary duty of then the Company Board Investor and its Affiliates shall be permitted to acquire Common Shares in one or any member thereof or which otherwise challenges more transactions in an amount such that their collective beneficial ownership would not exceed the Merger AgreementMaximum Percentage Ownership.
Appears in 2 contracts
Sources: Investor Rights Agreement (Third Point Reinsurance Ltd.), Investor Rights Agreement (Third Point Reinsurance Ltd.)
Standstill. (a) Each of the Shareholders The Stockholders hereby agrees agree that, from and after the date hereof until hereof, the earlier of the Effective Time of the Merger Stockholders and the termination of the Merger Agreement, such Shareholder their Affiliates shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(ia) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”"TRANSFER"), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Subject Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(vb) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire Common Stock or any other securities of the Company, or any assets of the Company or any subsidiary or division thereof;
(vic) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the rules of the Securities and Exchange Commission) to votevote (including by consent), or seek to advise or influence any Person person or entity with respect to the voting of, any voting securities of the Company (including including, without limitation, by making publicly known such Shareholder’s your position on any matter presented to shareholdersstockholders), other than to recommend that shareholders stockholders of the Company vote in favor of the Merger and the Merger Agreement;
(viid) submit to the Company any shareholder stockholder proposal under Rule 14a-8 under the Exchange Act;
(viiie) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s Company or its securities or assets;
(ixf) form, join or in any way participate in a “"group” " (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(xg) seek, seek in any way which may be reasonably likely to requireway, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have any provision of this Section 3.1 amended, modified or waived;; or
(xih) otherwise take, directly or indirectly, any actions with the purpose or effect of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, Agreement or such Shareholder’s its ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Voting Agreement (Integrated Defense Technologies Inc), Voting Agreement (Integrated Defense Technologies Inc)
Standstill. (a) Each of the Shareholders hereby agrees that, from On and after the date hereof until the earlier fifth anniversary of the Effective Time Closing (the “Standstill Period”), each of Leopard Parent, Dragon Parent and M (collectively, together with any other Person that is required to become a party to this Agreement pursuant to Section 4.01, the Merger and the termination of the Merger Agreement, such Shareholder “LDM Investors”) shall not, and shall ensure that its Controlled Persons and any Person acting on behalf of, or in concert with, it or any of its Controlled Persons will not, and shall not knowingly facilitate or knowingly encourage any other Person (including, in the case of M, any JCM Investee) to, directly or indirectly, unless in any manner, effect any acquisition of ownership (iincluding by operation of law and including the acquisition of the right to vote or direct the voting of any Company Securities) specifically requested by Parent of Company Securities; provided that any LDM Investor shall be permitted to acquire additional Voting Securities (including the acquisition of the right to vote or direct the voting of any Company Securities) as long as such acquisition would not result in the LDM Investors, together with their respective Affiliates, beneficially owning Voting Securities representing more than 18.5% of Total Voting Power outstanding at such time.
(iib) expressly contemplated by During any period in which the terms restrictions of this Agreement Section 2.01(a) are in effect, each of the LDM Investors shall not, and shall ensure that any of its Controlled Persons and any Person acting on behalf of, or in concert with, it or its Controlled Persons shall not, and shall not knowingly facilitate or knowingly encourage any other Person (including, in the Merger Agreementcase of M, any JCM Investee) to, directly or indirectly, in any manner:
(i) selleffect or seek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in (collectively, other than as a “Transfer”seller on the same terms as other holders of Company Securities), or enter into any contracttender offer, option take-over bid, amalgamation, plan of arrangement, merger, exchange offer, consolidation, business combination, recapitalization, restructuring or other agreement with respect to, similar transaction involving the Company or consent to, a Transfer of, the record any of its Subsidiaries (or beneficial ownership or both or voting power, any of any or all of the Shareholder Owned Sharestheir respective assets);
(ii) enter into any voting agreement(A) effect or seek, proxy, consent offer or power of attorney with respect topropose (whether publicly or otherwise) to effect, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into announce any short sale with respect intention to the Common Stock effect or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way otherwise participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC or in applicable Canadian securities laws) to vote, or withhold from voting, or seek to advise or influence any Person with respect to the voting voting, or withholding from voting, of, or conduct any voting securities other type of referendum (binding or non-binding) with respect to, any Voting Securities, (B) solicit, knowingly facilitate or knowingly encourage, directly or indirectly, any third party (including, in the Company case of M, any JCM Investee) to engage in any such solicitation, (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiC) make any public announcement with respect tostatement in support of any such third-party solicitation, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixD) form, join or in any way participate in a “group” group with respect to any Voting Securities (other than as defined a result of this Agreement and the Investor Rights Agreement) or (E) seek or propose the election or appointment of any person to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or seek or propose the removal of any member of the Board; provided that the prohibitions in this Section 13(d)(32.01(b)(ii) shall not affect the right to appoint, nominate or propose the nomination of any Investor Designee pursuant to the Investor Rights Agreement or this Agreement;
(iii) (A) call, request the calling of or otherwise seek or assist in the calling of a meeting of the shareholders of the Company, or (B) seek, propose or submit, any proposal or matter of business (whether binding or not) to be considered or voted upon at a meeting of the shareholders of the Company, including pursuant to Rule 14a-8 under the Exchange ActAct or submit, or participate in, any “shareholder access” proposal;
(iv) in connection publicly seek or propose to control the management or policies of the Company;
(v) disclose any intention, plan or arrangement prohibited by or inconsistent with any of the foregoing;
(xvi) seekrequest that the Company (or its directors, in any way which may be reasonably likely to requireofficers, involve employees or trigger public disclosure of such request pursuant to applicable Lawagents), to have directly or indirectly, amend or waive any provision of this Section 3.1 amended, modified or waived(including this sentence);
(xivii) otherwise take, directly or indirectly, take any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or action which could would reasonably be expected to have the effect of preventing, impeding, interfering with result in or adversely affecting the consummation require public disclosure regarding any of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): types of matters set forth in clauses (i) a pledge of Shareholder Owned Shares required under through (vi); or
(viii) agree or commit to any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (yforegoing; provided that nothing contained in this Section 2.01(b) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described Section 2.01(b)(i), which is subject to 2.01(c)) shall limit, restrict or prohibit any confidential discussions with or confidential communications or confidential proposals to the Board by the LDM Investors, their Affiliates or their representatives, in clause (iv) each case so long as such discussions, communications or proposals would not reasonably be expected to require any of the immediately preceding sentence)Company, including the LDM Investors or their respective Affiliates or representatives to publicly disclose such discussions, communications or proposals; and provided, further, that, for the avoidance of doubt, nothing contained in connection with a Shareholder Owned Shares Proposal (subject to compliance with this Section 3.3(b))2.01(b) shall limit, such Shareholder shall promptly (and in restrict or prohibit any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is LDM Investors from communicating with Mammoth on a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Sharesconfidential basis.
(c) Prior Notwithstanding the foregoing and notwithstanding anything to the termination of this Agreement in accordance with its termscontrary contained herein, in at any time after the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting ofClosing, any additional shares one or more of the LDM Investors may make an LDM Buyout Offer (and, if approved by a majority of the disinterested directors on the Board who are not (i) Investor Designees (other than Mammoth’s Investor Designees) or (ii) directors who are directors, managers, principals, partners, officers or employees of any LDM Investor or any of its Affiliates, may enter into a definitive agreement with the Company Common Stock or other voting interests with respect providing for such LDM Buyout Offer and thereafter take actions to the Companyconsummate, and consummate, such Shareholder shall notify Parent promptly LDM Buyout Offer on the terms and conditions of such acquisitiondefinitive agreement). Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions For purposes of this Agreement, “LDM Buyout Offer” means any bona fide written proposal made on a confidential basis to the Board (subject to any mandatory disclosure requirements under applicable securities laws) relating to the acquisition (whether by tender offer, take-over bid, amalgamation, plan of arrangement, merger, consolidation, business combination or otherwise) by any or all of the LDM Investors and their respective Affiliates of all of the number of shares of outstanding Company Common Stock Securities (other than the Company Securities held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly the applicable LDM Investor(s) and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(dtheir Affiliates) Prior to the termination of this Agreement in accordance with its termsfor consideration comprising solely cash, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges and includes a non-waivable requirement that the execution and delivery acquisition results in the acquisition of all of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty outstanding capital stock of the Company Board or any member thereof or which otherwise challenges on the Merger Agreementsame terms.
Appears in 2 contracts
Sources: Voting and Standstill Agreement (Screaming Eagle Acquisition Corp.), Voting and Standstill Agreement (Lions Gate Entertainment Corp /Cn/)
Standstill. No Stockholder shall, during the period commencing on the date of this Agreement and continuing for 12 months after the earlier of (a) Each of the Shareholders hereby agrees thatClosing Date and (b) the Expiration Date (such period, from and after the date hereof until the earlier of the Effective Time of “Standstill Period”), unless such action is expressly contemplated by the Merger Agreement or otherwise shall have been specifically invited in writing by the Parent Board (it being understood that execution of this Agreement by Parent does not constitute such an invitation), and the termination of the Merger Agreement, such Shareholder shall noteach Stockholder will direct its Representatives not to, directly or indirectly:
(a) effect or seek, unless offer or propose (iwhether publicly or otherwise and whether or not subject to conditions) specifically requested by Parent to effect or (ii) expressly contemplated by the terms of this Agreement seek, or the Merger Agreementannounce any intention to effect or seek, or cause or otherwise participate in:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)any acquisition of, or enter into obtaining any contracteconomic interest in, option any right to direct the voting or disposition of, or any other agreement Right with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned SharesParent Common Stock;
(ii) enter into any voting agreementtender or exchange offer, proxyconsolidation, consent acquisition, merger, joint venture, business combination or power extraordinary transaction involving Parent or any of attorney with respect to, its Subsidiaries or deposit into all or a voting trust, material portion of the Shareholder Owned Sharesassets of Parent or any of its Subsidiaries (except that any Stockholder or its Representatives may affect or pursue an acquisition of any assets offered for sale by Parent or any of its Subsidiaries);
(iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock Parent or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;any of its Subsidiaries; or
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the rules SEC) or consents to vote any voting securities of the Securities and Exchange Commission) to voteParent or any of its Subsidiaries from any holder of any voting securities of Parent or any of its Subsidiaries, or seek to advise otherwise advise, assist or influence encourage any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on Parent or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(viib) submit to form, join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the Company any shareholder proposal under meaning of Rule 14a-8 13d-5(b)(l) promulgated under the Exchange Act) with respect to any voting or other securities of Parent or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Parent or any of its Subsidiaries or otherwise act in concert with any Person in respect of any such securities;
(viiic) call, request, or seek to have called any meeting of the stockholders of Parent or execute any written consent in lieu of a meeting of holders of any securities of Parent;
(d) otherwise seek, or propose to seek, representation on, or to control or influence, or to propose to control or influence, the Parent Board or the management, shareholders or policies of Parent or any of its Subsidiaries, or take any action to prevent or challenge any business combination or similar transaction to which Parent or any of its Subsidiaries is a party;
(e) request that Parent or any of its Representatives amend or waive any provisions of this Section 3.3, or make any public announcement with respect toto the restrictions of this Section 3.3 or any plan, arrangement or submit a proposal for, or offer of (intention with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with respect to any of the foregoing;actions restricted by this Section 3.3 or take any action, or make or permit its Representatives to take any action, that might force Parent or any of its Subsidiaries to make a public announcement or other public disclosure regarding any of the types of matters set forth in clause (a), (b), (c) or (d) above; or
(xf) seekadvise, in assist, or knowingly encourage, or direct any way which may be reasonably likely Person to requireadvise, involve assist or trigger public disclosure knowingly encourage any other persons with respect to any of such request pursuant to applicable Law, to have any provision of the conduct prohibited by this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement3.3. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): parties agree and acknowledge that (i) a pledge each Stockholder may vote its shares of Shareholder Owned Shares required under Parent Common Stock at any credit facility meeting of holders of Parent Common Stock in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementits sole discretion, (ii) Transfers to a family member any Stockholder may coordinate any such vote with, act in concert with, and be part of a Shareholder (or to a trust for the benefit “group” with, any other Stockholder that is an Affiliate of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound Stockholder, and subject to the terms and provisions of this Agreement, (iii) Transfers nothing in this Section 3.3 shall apply to a third party if potential or actual purchases or sales of oil and/or gas assets between any Stockholder (or, for the transferee agrees in writing reasonably satisfactory to avoidance of doubt, any of its Affiliates), on the Parent to be bound and subject to the terms and provisions of this Agreementone hand, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options Parent or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits Subsidiaries, on the voting of its Shareholder Owned Sharesother hand.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Voting and Support Agreement (WildHorse Resource Development Corp), Voting and Support Agreement (Chesapeake Energy Corp)
Standstill. Without the prior written consent of the Board, no Member shall, and each shall cause each of its respective Affiliates, associates and Representatives not to, do any of the following for a period (the “Restricted Period”) commencing on the date hereof and ending on the day after the Company’s 2017 Annual Meeting of Stockholders (provided that nothing in this Section 3 shall limit any actions that may be taken by the Designee acting in its capacity as a director of the Company consistent with his fiduciary duties):
(a) Each 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 Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notCompany generally on a pro rata basis), directly or indirectly, unless 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” (iwithin the meaning of Section 13(d)(3) specifically requested by Parent 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 which would result in the PL Capital Group (iitogether with any other Person or “group” referred to in this Section 3(a)) expressly contemplated by owning, controlling or otherwise having any ownership or voting interest in 10% or more of the terms outstanding shares of this Agreement or common stock of the Merger Agreement:Company;
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)engage, or enter into in any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquireway participate, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used term is defined in Rule 14a-1(l) under the rules Exchange Act) of proxies or consents in any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Securities and Exchange CommissionCompany), (ii) to vote, or seek to advise advise, encourage or influence any Person with respect to the voting of, of any voting securities of the Company in any “election contest” with respect to the Company’s directors (including by making publicly known such Shareholder’s position on any matter presented to shareholdersregardless of whether it involves the election or removal of directors of the Company), other than to recommend that shareholders of the Company vote (iii) initiate, propose or otherwise “solicit” (as such term is defined in favor of the Merger and the Merger Agreement;
(viiRule 14a-1(l) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act) stockholders of the Company for the approval of stockholder proposals in connection with the election or removal of directors of the Company, or (iv) induce or attempt to induce any other Person to initiate any such stockholder proposal;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join or in any way participate in a partnership, syndicate, or other group, including without limitation any “group” (as defined in under Section 13(d)(3) under of the Exchange Act) , with respect to any voting securities of the Company in connection with any “election contest” with respect to the Company’s directors or any stockholder proposal for consideration at any stockholder meeting except as otherwise expressly provided in this Agreement;
(d) deposit any Company voting securities in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(e) seek, alone or in concert with others, (1) to call a meeting of stockholders or solicit consents from stockholders or conduct a nonbinding referendum of stockholders, (2) to obtain representation on the Board except as otherwise expressly provided in this Agreement, (3) to effect the removal of any member of the Board, provided that this shall not pertain to the Designee or his replacement who is a director of the Company, (4) to make or be a proponent of a stockholder proposal at any meeting of the stockholders of the Company, or (5) to amend any provision of the Company’s certificate of incorporation or bylaws or make a request for any stockholder list or other books and records of the Company, whether pursuant to the Maryland General Corporation Law, the Company’s bylaws or otherwise;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any Person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of more than 10% of any securities, or any material assets or businesses, of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving more than 10% of any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses, or (iv) make any public statement with respect to a transaction described in the foregoing clauses (i)-(iii);
(g) enter into any discussions, negotiations, 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 with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;; or
(xh) seek, make or in any way which may be reasonably likely advance any request or proposal to requireamend, involve modify or trigger public disclosure of such request pursuant to applicable Law, to have waive any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or Agreement other than in a nonpublic and confidential manner and which nonpublic and confidential request could not reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Sharesrequire public disclosure by any party hereto.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (PL Capital Advisors, LLC), Cooperation Agreement (Banc of California, Inc.)
Standstill. (a) Each of the Shareholders hereby Seller, BCC and ▇▇. ▇▇▇▇▇▇▇ agrees that, from and after during the period beginning on the date hereof until and ending on the earlier fourth (4th) anniversary of the Effective Time of date hereof (the Merger and the termination of the Merger Agreement“Restricted Period”), such Shareholder shall it or he will not, directly and it or indirectly, unless he will cause each of such person’s Affiliates (ias defined in Rule 12b-2 (“Rule 12b-2”) specifically requested by Parent or (ii) expressly contemplated promulgated by the terms of this Agreement Securities and Exchange Commission (the “SEC”) under the Exchange Act), including, without limitation, agents or the Merger Agreementother persons acting on its or his behalf not to, and will use commercially reasonable efforts to cause its or his respective Associates (as defined in Rule 12b-2) not to:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(va) acquire, offer or propose to acquire, acquire or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any assets (i) interests in any of the Company Purchaser’s indebtedness or any subsidiary or division thereof(ii) capital stock of the Purchaser;
(vib) makeinduce or encourage any person to submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration at a meeting of the shareholders of the Purchaser;
(c) advise, encourage or influence any person with respect to voting any shares of capital stock of the Purchaser with respect to any matter;
(d) seek to control or influence the governance or policies of the Purchaser;
(e) effect or 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 participate in, directly in (i) any acquisition of any material assets or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules businesses of the Securities and Exchange CommissionPurchaser or any of its subsidiaries, (ii) to voteany tender offer or exchange offer, merger, acquisition or seek to advise other business combination involving the Purchaser or influence any Person of its subsidiaries or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the voting Purchaser or any of its subsidiaries;
(f) make any request, submit any proposal or disclose any intent to seek or obtain any waiver, consent under, or any amendment of, any voting securities provision of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), this Agreement other than through non-public communications with the Purchaser that would not be reasonably determined to recommend that shareholders trigger public disclosure obligations for any Party or any Affiliate of the Company vote in favor of the Merger and the Merger Agreementany Party;
(viig) submit enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person for the purpose of engaging, or offering or proposing to engage, in any of the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;foregoing; or
(viiih) make take or cause or induce others to take any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection action inconsistent with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Air T Inc), Securities Purchase Agreement (Biglari Capital Corp.)
Standstill. ▇▇▇▇▇ and Purchaser agree that, for a period of one year from the Closing Date, neither they nor any of their controlled “affiliates” (a) Each as such term is defined in Rule 12b-2 of the Shareholders hereby agrees thatSecurities Exchange Act of 1934 (the “Exchange Act”), from and after the date hereof until the earlier but excluding any companies in which ▇▇▇▇▇ holds less than 25% of the Effective Time outstanding equity or 25% of the Merger and board seats) will, or will assist or encourage others to, without the termination prior written consent of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless Seller: (i) specifically requested by Parent acquire or (ii) expressly contemplated by the terms of this Agreement agree, offer, seek or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer propose to acquire, or agree cause to acquirebe acquired, directly or indirectly, by purchase or otherwise, any assets ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Company Securities Exchange Act of 1934 of any voting securities or direct or indirect rights or options to acquire any voting securities of Seller or any subsidiary thereof, or of any successor to or person in control of Seller, any of the assets or businesses of Seller or any subsidiary or division thereof;
thereof or of any such successor or controlling person or any bank debt, claims or other obligations of Seller or any rights or options to acquire (viother than those currently owned) makesuch ownership (including from a third party) provided that the foregoing will not prohibit ▇. ▇▇▇▇▇ & Co. Inc. from effecting unsolicited client transactions in securities of Seller; (ii) seek or propose to influence or control the management or policies of Seller or to obtain representation on Seller’s Board of Directors, or solicit, or participate in any way participate in, directly or indirectlythe solicitation of, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, proxies or seek to advise or influence any Person consents with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on Seller, or make any matter presented public announcement with respect to shareholders), other than to recommend that shareholders any of the Company vote in favor foregoing or request permission to do any of the Merger and the Merger Agreement;
foregoing; (vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiiii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s Seller or its securities or assets;
; (ixiv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with any of the foregoing;
; (xv) seek, publicly seek or request permission or participate in any way which may be reasonably likely effort to requiredo any of the foregoing or make or seek permission to make any public announcement with respect to the foregoing; or (vi) publicly request Seller or any of its representatives, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend or waive any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)4.15.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Merger and Asset Purchase Agreement (National Rv Holdings Inc), Merger and Asset Purchase Agreement (Riley Investment Management LLC)
Standstill. (a) Each of the Shareholders hereby members of the ▇▇▇▇▇▇▇▇▇ Group agrees that, from during the Standstill Period, he or it will not, and after the date hereof until the earlier he or it will cause each of the Effective Time of the Merger such Person’s Affiliates and the termination of the Merger Agreement, such Shareholder shall notAssociates and require other Persons acting on his or its behalf not to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sellacquire, transferoffer to acquire or agree to acquire, tenderalone or in concert with any other individual or entity, pledgeby purchase, encumbertender offer, assignexchange offer, hypothecateagreement or business combination or any other manner, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all securities of the Shareholder Owned SharesCompany; provided, however, that this restriction shall not apply to any securities received by each of the Nominees pursuant to Section 8 of this Agreement;
(ii) enter into submit any voting agreement, proxy, shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration at a stockholder meeting or written consent or power of attorney with respect toin lieu thereof, or deposit into a voting trustnominate any candidate for election to the Board or oppose the directors nominated by the Board, the Shareholder Owned Sharesother than as expressly permitted by this Agreement;
(iii) enter into form, join in or in any short sale 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 substantially identical property deposit any shares of Common Stock in a voting trust or enter into similar arrangement or acquire an offsetting derivative contract with respect subject any shares of Common Stock to any voting agreement or pooling arrangement other than as set forth in the Shareholder Owned Shares or substantially identical propertySchedule 13D on the date hereof;
(iv) transfer any solicit proxies or written consents of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquireshareholders, or agree otherwise conduct any nonbinding referendum with respect to acquireCommon Stock, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of any “proxiesproxy” (as such terms are used in within the rules meaning of Rule 14a-1 promulgated by the Securities and SEC under the Exchange Commission) Act to vote, or seek to advise advise, encourage or influence any Person with respect to the voting ofvoting, any voting securities 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 (including as such terms are defined or used under the Exchange Act and the rules promulgated by making publicly known such Shareholder’s position on any matter presented to shareholdersthe SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2011 Annual Meeting or, if applicable, the 2012 Annual Meeting as set forth in this Agreement;
(v) seek, in any capacity other than as a member of the Board, to recommend that 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 vote in favor or make a request for a list of the Merger 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 a member of the Board or otherwise as expressly permitted by this Agreement; provided, however, that the foregoing shall not prohibit the ▇▇▇▇▇▇▇▇▇ Group from (A) making statements contemplated by Rule 14a-1(l)(2)(iv)(B) under the Exchange Act to the extent applicable to holders of interests in Prentice Capital Management, LP and Prendel, LLC, and by Rule 14a-1(l)(2)(iv)(C) to the Merger Agreementextent relating to the foregoing statements), (B) engaging in discussions with other stockholders (so long as the ▇▇▇▇▇▇▇▇▇ Group does not initiate such discussions and such discussions are in compliance with the terms and conditions hereof) (clauses (1) and (2), together, “Permitted Actions”) with respect to any transaction that has been publicly announced by the Company involving a recapitalization of the Company, or a material acquisition, disposition or sale of assets or a business by the Company, or a change of control of the Company, (C) voting as it sees fit on any matter other than with respect to the election of directors, or (D) privately contacting the Board or management of the Company to express his views regarding Company matters so long as such contact or communication (1) will not require or result in an amendment to or other public disclosure in connection with the Schedule 13D filed by the ▇▇▇▇▇▇▇▇▇ Group or any of its affiliates with respect to the Company and (2) does not unduly interfere with management’s duties and responsibilities or the day-to-day operation of the Company’s business and affairs;
(vi) 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 of its subsidiaries;
(vii) submit 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 Company media or securities analyst) of, any shareholder intent, purpose, plan or proposal under Rule 14a-8 under to obtain any waiver, or consent under, or any amendment of, any of the Exchange Actprovisions of Sections 4 or 5 of this Agreement, or otherwise seek (in any manner that would require public disclosure by any of the members of the ▇▇▇▇▇▇▇▇▇ Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(viii) make publicly disparage any public announcement with respect to, member of the Board or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition management of the Company’s securities ; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or assetsotherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(ix) formenter into any arrangements, join understandings or agreements (whether written or oral) with, or advise, finance, cause, solicit, induce, assist or encourage, any other Person that engages, or offers or proposes to engage, in any way participate in a “group” of the foregoing; or
(as defined in Section 13(d)(3x) under the Exchange Act) in connection take, cause, solicit, induce or assist others to take any action inconsistent with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this AgreementSection 5, and the members of the ▇▇▇▇▇▇▇▇▇ Group shall be entitled to acquire, from time to time, in one or more transactions in the open market, in privately negotiated transactions or from the Company, additional securities of the Company, if, after giving effect to any acquisition of the additional securities, the number of shares of Company Common Stock held beneficially owned by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such the ▇▇▇▇▇▇▇▇▇ Group would not exceed 14.0% of the aggregate number of shares of Company Common Stock or voting interests shall automatically become subject to outstanding (as reported in the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement most recent report filed by the Company Board, breaches any fiduciary duty of with the Company Board or any member thereof or which otherwise challenges the Merger AgreementSEC containing such information).
Appears in 2 contracts
Sources: Board Appointment Agreement (dELiAs, Inc.), Board Appointment Agreement (Prentice Capital Management, LP)
Standstill. Upon an exercise of the Option which results in Grantee or any Holder owning in excess of 9.9% of the then outstanding shares of Common Stock, the person who would own in excess of 9.9% of such shares shall be subject to the following restrictions:
(a) Each of the Shareholders hereby agrees thatit and its affiliates will not (and will not assist, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notprovide or arrange financing to or for others or encourage other to), directly or indirectly, unless acting alone or as part of a group, (i) specifically requested by Parent propose to Issuer or to any of Issuer's security holders or any other person any merger, consolidation or similar transaction, acquisition of a substantial portion of Issuer's business or assets, an acquisition of any of Issuer's securities or any other transaction involving any of Issuer's securities, in any such case involving it and the Issuer or the Issuer and any third party, (ii) expressly contemplated acquire by purchase or otherwise, or agree, propose or offer to acquire any of the securities of Issuer or any interest therein (other than pursuant to exercises of the Option, stock dividends or other distributions by the terms Issuer or offerings by Issuer made available to holder of shares of Common Stock generally), (iii) otherwise seek to influence or control, in any manner whatsoever, (including proxy solicitation, becoming a "participant" in any "election contest," or otherwise), the management or policies of the Issuer or (iv) enter into discussions, negotiations, arrangements or understandings with, or solicit or encourage, any third party with respect to any of the foregoing or make public disclosure in respect of any of the foregoing or request permission to do any of the foregoing. (As used in this Agreement Agreement, the term "affiliate" shall have the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934.) (Notwithstanding the foregoing, any employee benefit, pension or similar plan of such person or the Merger AgreementCompany, as the case may be, may own, acquire or transfer up to 1% of any class of securities of an Issuer in the ordinary course of business, solely for investment.); and
(b) it shall not sell, transfer or dispose of the Option Shares (a "Transfer") except:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign to affiliated or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, associated persons who agree to become subject to this Agreement on the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Sharessame terms as such person;
(ii) enter into any voting agreementin connection with a bona fide pledge, proxy, consent or power of attorney with respect to, or deposit into a voting trust, after default in the Shareholder Owned Sharesobligation secured by the pledge;
(iii) enter into any short sale an offering or distribution of the Shares in compliance with respect the Securities Act in which reasonable efforts are made not to knowingly sell 5% or more of the then outstanding shares of Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to any one person (including its affiliates and other members of a "group" within the Shareholder Owned Shares or substantially identical propertymeaning of Rule 13(d)(3) of the Securities Exchange Act of 1934);
(iv) transfer any in compliance with the requirements of Rule 144 under the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effectSecurities Act;
(v) acquirein privately negotiated transactions which would not, offer to acquirethe reasonable knowledge of such person after reasonable inquiry, after giving effect to the Transfer result in the acquiror's ownership of 5% or agree to acquire, directly or indirectly, by purchase or otherwise, any assets more of the Company or any subsidiary or division thereofoutstanding shares of Common Stock;
(vi) make, pursuant to a tender or in any way participate in, directly or indirectly, any “solicitation” of “proxies” exchange offer (as such terms are used in the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder) made by a party not affiliated or associated with such person for all outstanding Shares as to which offer a majority of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities directors of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend Issuer then in office have not recommended that shareholders of the Company vote in favor of the Merger and the Merger Agreement;stockholders not tender or exchange their Shares; or
(vii) submit pursuant to a tender or exchange offer by the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join Issuer or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve merger or trigger public disclosure of such request other transaction pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions an agreement with the purpose Issuer. These restrictions shall expire upon the earlier of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on five years from the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, Agreement and (ii) Transfers the date upon which such person owns less than 5% of the outstanding shares of Common Stock so long as this person continues to a family member own less than 5% of a Shareholder (or to a trust the outstanding shares of Common Stock for the benefit of a family member) next twelve consecutive months and, if its ownership is 5% or to a charitable organization if (x) the Shareholder retains voting control more of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory outstanding shares during this twelve month period, then these restrictions shall once again apply to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)person.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Stock Option Agreement (Allied Waste Industries Inc), Stock Option Agreement (American Disposal Services Inc)
Standstill. (a) Each of the Shareholders hereby K Capital Parties jointly and severally agrees that, from and after without the date hereof until the earlier prior written consent of the Effective Time Board of Directors of the Merger and the termination Company expressed in a resolution adopted by a majority of the Merger Agreementdirectors, such Shareholder it shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms and will cause each of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect its Affiliates not to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, during the period from the date hereof through the tenth anniversary of the date of this Agreement:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of any of the assets or businesses of the Company or any subsidiary securities of the Company (including, without limitation, any debt, equity or division thereofconvertible securities) or any rights or options to acquire any such ownership from any Person;
(vib) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or written consents of shareholders with respect to, securities of the Company, or seek to advise advise, encourage or influence in any manner whatsoever any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementCompany;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join join, or in any way participate in a “"group” " (as defined in within the meaning of Section 13(d)(313d(3) under of the Exchange Act) with respect to any voting securities of the Company;
(d) arrange, or in any way participate in, any financing for the purchase of any securities or assets of the Company or securities convertible or exchangeable into any securities or assets of the Company;
(e) otherwise act, whether alone or in concert with others, to seek to propose (with or without conditions) to the Company, or any of its stockholders, any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction to or with any other Person or otherwise act, whether alone or in concert with others, to seek to control, change or influence the management, shareholders, board of directors, or policies of the Company;
(f) solicit, negotiate with, or provide any information to, any Person with respect to a merger, consolidation, business combination, tender or exchange offer, recapitalization, or liquidation of the Company or any other acquisition of the Company, any acquisition of securities or any of the assets of the Company or any other similar transaction;
(g) call or participate in calling, any special meeting of the stockholders of the Company, or nominate any person for election as a director of the Company, or make any proposal to be considered and/or voted upon at any meeting of the stockholders of the Company, or induce or attempt to induce any other person to initiate any stockholder proposal or director nomination, or discuss or communicate with respect to any matter related to the business or affairs of the Company with the stockholders of the Company;
(h) execute any written consent as shareholder with respect to the Company or its securities;
(i) announce an intention to, or enter into any discussion, negotiations, arrangements or understandings with any third party with respect to, any of the foregoing matters;
(j) disclose any intention, plan or arrangement inconsistent with any of the foregoing provisions;
(k) advise, assist, encourage or participate with any other Person in connection with any action inconsistent with any of the foregoing;foregoing provisions; or
(xl) seekpublicly disclose any request to amend, in any way which may be reasonably likely to require, involve waive or trigger public disclosure of such request pursuant to applicable Law, to have terminate any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Settlement Agreement (Gyrodyne Co of America Inc), Settlement Agreement (K Capital Partners LLC)
Standstill. (a) Each of Except as otherwise contemplated or permitted by this Agreement, during the Shareholders hereby agrees that, from and after period commencing on the date hereof until of this Agreement and continuing to the earlier of the Effective Acceptance Time of the Merger and or the termination of this Agreement in accordance with its terms, MetLife agrees that neither it nor its Subsidiaries shall, and that it shall not authorize, permit or direct any of its Subsidiaries to, without the Merger Agreement, such Shareholder shall notprior approval of the RGA Special Committee, directly or indirectly, unless (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to initiate, effect or participate in or support, (i) specifically requested by Parent any acquisition of any securities (or beneficial ownership thereof) or material assets of RGA or any of its Subsidiaries, (ii) expressly contemplated by the terms of this Agreement any tender or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign exchange offer or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option merger or other agreement with respect tobusiness combination involving RGA or any of its Affiliates, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock RGA or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
any of its Subsidiaries; and (iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the rules of the Securities and Exchange CommissionAct) to vote, or seek to advise or influence any Person with respect to the voting ofof any shares of RGA Common Stock, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a any “group” (as defined other than with respect to MetLife’s Affiliates) with respect to any of the shares of RGA Common Stock, (c) otherwise act, either alone or in Section 13(d)(3concert with others, to seek control of RGA, including by submitting any written consent or proposal in furtherance of the foregoing or calling a special meeting of RGA Shareholders, (d) under the Exchange Act) in connection publicly disclose any intention, proposal, plan or arrangement with respect to any of the foregoing;
, or (xe) seektake any action, in or request any way which may be reasonably likely to requireamendment or waiver hereof, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could that would reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability require RGA to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, make a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests public announcement with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder matters set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock in (a) or voting interests shall automatically become subject to the terms of this Agreement(c) above.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Recapitalization and Distribution Agreement (Metlife Inc), Recapitalization and Distribution Agreement (Reinsurance Group of America Inc)
Standstill. (a) Each Selling Party agrees that for a period of the Shareholders hereby agrees that, two years from and after the date hereof until (the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “TransferStandstill Period”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer neither it nor any of its affiliates, alone or with others comprising a “group” (as defined under the economic interest Exchange Act), will in the Shareholder Owned Shares or enter into any transaction that has such effect;
manner (v1) acquire, offer agree to acquire, or agree make any proposal (or request permission to acquiremake any proposal) to acquire any securities (or direct or indirect rights, directly warrants or indirectly, by purchase options to acquire any securities) representing in the aggregate two percent (2%) or otherwise, any assets more of the Company voting power of Parent Common Stock (other than the Parent Common Stock to be issued as Merger Consideration or any subsidiary Interests Purchase Consideration, as the case may be, and Parent Common Stock that may be issued to individuals who are among the Selling Parties as employee compensation) or division thereof;
material property of Parent, unless such acquisition, agreement or making of a proposal shall have been expressly first approved (vi) make, or in any way participate inthe case of a proposal, directly or indirectlyexpressly first invited) by the Parent Board, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix2) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) with respect to any securities of Parent or any of its Subsidiaries or otherwise act, alone or in connection concert with others, to solicit proxies from shareholders of Parent or otherwise seek to influence or control the management or policies of Parent or any of its affiliates (except, in the case of ▇▇▇▇ ▇▇▇▇▇▇▇▇, in his role as director, Chairman of the Parent Board and employee of Broadpoint Capital, Inc., and in the case of any other Selling Party, in such Selling Party’s role as an employee of Parent or any of its Subsidiaries; it being understood that the foregoing shall not prohibit any such person from expressing his or her views on matters to be voted upon by stockholders so long as such expressions do not constitute a “solicitation” necessitating a public filing under the applicable rules of the Exchange Act), or (3) assist, advise or encourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing;
(x) seek, in . Each Selling Party hereby represents that neither it nor its affiliates beneficially own any way which may be reasonably likely to require, involve or trigger public disclosure shares of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation Parent Common Stock as of the transactions contemplated by date hereof or as of the Closing Date (other than the Parent Common Stock to be issued as Merger AgreementConsideration or Interests Purchase Consideration, including as the Merger, or such Shareholder’s ability to perform its obligations under this Agreementcase may be). Notwithstanding the foregoing, such Selling Party and its affiliates will not be subject to any of the following Transfers are expressly permitted under restrictions set forth in this Agreement (each such Transferparagraph, and this paragraph shall terminate and be of no further force or effect, if Parent shall have entered into a "Permitted Transfer"): definitive agreement providing for (i) any acquisition of a pledge majority of Shareholder Owned Shares required under the voting securities of Parent by any credit facility in existence on person or group (other than by MatlinPatterson FA Acquisition LLC and its affiliates (collectively, the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement“Permitted Holders”)), (ii) Transfers to a family member any acquisition or disposition of a Shareholder substantially all the consolidated assets of Parent by any person or group (or to a trust for other than the benefit of a family memberPermitted Holders) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers any form of merger, business combination, acquisition, restructuring, recapitalization or similar transaction with respect to a third party if the transferee agrees in writing reasonably satisfactory Parent pursuant to the Parent to be bound and subject to the terms and provisions of this Agreementwhich, and (iv) Transfers to the Company in immediately following such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that transaction, any Shareholder effects a Permitted Transfer person (other than the Permitted Holders) or the direct or indirect shareholders of such person shall beneficially own a Permitted Transfer described in clause (iv) majority of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify outstanding voting power of Parent or of the consummation of surviving parent entity in such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)transaction.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
Standstill. (a) Each Effective as of the Shareholders hereby date of this Agreement, other than as contemplated by this Agreement, each Investor agrees that, from prior to August 8, 2005, it will not and after the date hereof until the earlier will not permit any member of the Effective Time of the Merger and the termination of the Merger AgreementWarburg Group or any other controlled Affiliate to, such Shareholder shall notin any manner, whether publicly or otherwise, directly or indirectly, unless without the prior written consent of the Company, (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer agree to acquire, acquire or agree make any public proposal to acquire, directly or indirectly, by purchase beneficial ownership of any voting securities or otherwise, any assets of the Company or any subsidiary Subsidiary, (ii) enter into or division thereof;
publicly propose to enter into, directly or indirectly, any merger or other business combination or similar transaction or change of control involving the Company or any Subsidiary, (viiii) make, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company or any Subsidiary, (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(viiiv) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect tocall, or submit seek to call, a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition meeting of the Company’s securities 's stockholders or assets;
initiate any stockholder proposal for action by stockholders of the Company, (ixv) bring any action or otherwise act to contest the validity of this Section 7.04 or seek a release of the restrictions contained in this Section 7.04, (vi) form, join or in any way participate in a “"group” " (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) with respect to any securities of the Company or any Subsidiary, (vii) other than any seat on the Board of Directors expressly granted to the Warburg Group by Section 6.09, seek representation on the Board of Directors, the removal of any directors from the Board of Directors or a change in the size or composition of the Board of Directors (including, without limitation, voting for any directors not nominated by the Board of Directors), (viii) enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any possible purchase or sale of any securities or assets of the Company or any Subsidiary, (ix) disclose any intention, plan or arrangement inconsistent with the foregoing, (x) take, or solicit, propose to or agree with any other Person to take, any similar actions designed to influence the management or control of the Company or (xi) advise, assist or encourage any other Persons in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Backstop Agreement (Warburg Pincus LLC), Backstop Agreement (Avaya Inc)
Standstill. (a) Each of the Shareholders hereby 7.1 Subscriber agrees that, from and after the date hereof that until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or the third (3rd) anniversary of the First Step Investment Closing and (ii) expressly contemplated by the terms occurrence of this Agreement a Significant Event (as defined below) (the “Standstill Period”), without the prior written consent of the Issuer, it will not at any time, nor will it cause or the Merger Agreement:
permit any of its affiliates to: (ia) selleffect or seek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into announce any contract, option intention to effect or other agreement with respect to, cause or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest participate in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way assist, knowingly facilitate or knowingly encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, directly (x) any acquisition of any securities (or indirectlybeneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof) as a result of which Subscriber would beneficially own more than thirty-five percent (35%) of the issued and outstanding shares of Class A common stock on a fully-diluted and as-converted basis, (y) any tender or exchange offer, merger or other business combination involving the Issuer or assets of the Issuer constituting a significant portion of the consolidated assets of the Issuer, or (z) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Issuer or any of its affiliates; (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) with respect to the Issuer or otherwise act in connection concert with any person in respect of any such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the Board or policies of the Issuer or to obtain representation on the Board; (d) take any action which would or would reasonably be expected to require the Issuer to make a public announcement regarding any of the types of matters set forth in clause (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing;
; it being understood that nothing in this Section 7 shall (xI) seekrestrict or prohibit the any representative of Subscriber on the Board from taking any action, or refraining from taking any action in connection with his or her role as a member of the Board or (II) restrict Subscriber’s acquisition of the Shares in accordance with the terms of this Subscription Agreement. Further, nothing in this Section 7 shall prohibit Subscriber from making any way which may proposal or offer with respect to the foregoing directly to the Board on a confidential basis; provided that such proposal or offer would not reasonably be reasonably likely expected to require, involve or trigger require any public disclosure of regarding such request pursuant to applicable Law, to have any provision proposal or offer. For purposes of this Section 3.1 amended7, modified or waived;
a “Significant Event” shall mean (xiA) otherwise takethe entry by the Issuer into a definitive agreement providing for, directly or indirectly, (x) any actions with acquisition or purchase by any person or “group” (within the purpose meaning of avoiding Section 13(d)(3) of the Exchange Act), other than by Subscriber or circumventing any provision of this Section 3.1 its affiliates, of securities representing or convertible into fifty percent (50%) or more of the then outstanding voting securities of the Issuer or any of its subsidiaries, (y) any merger, consolidation, business combination or similar transaction involving the Issuer or any of its subsidiaries pursuant to which could reasonably be expected to have the effect stockholders of preventingthe Issuer immediately preceding such transaction will hold less than fifty percent (50%) of the outstanding voting securities of the surviving or resulting entity of such transaction; or (z) any sale, impedinglease, interfering with exchange, transfer, license or adversely affecting disposition of all or a majority of the consummation consolidated assets of the Issuer and its subsidiaries (any of the transactions contemplated by described in the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if foregoing clauses (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or ), (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementor (z), an “Acquisition Transaction”), (iiiB) Transfers to commencement or other public announcement by a third party if person or “group” (within the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions meaning of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (ivSection 13(d)(3) of the immediately preceding sentenceExchange Act), including in connection with other than Subscriber or any of its affiliates, of a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b))tender offer or exchange offer which, such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer if consummated, would constitute an Acquisition Transaction and the material details thereof, including the identity of the acquiror, the price, and Board either accepts or recommends such offer or fails to recommend within ten (10) Business Days from the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock commencement or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly public announcement of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action offer that its stockholders reject such offer and (C) the closing price of the partiesClass A common stock falls below $5.00 per share (as adjusted for stock splits, be deemed Shareholder Owned Shares and subject to the provisions of this Agreementstock dividends, reorganizations, recapitalizations and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementlike) for any twenty (20) trading days within any thirty (30)-trading day period.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Naspers LTD), Subscription Agreement (Churchill Capital Corp II)
Standstill. (a) Each From the Effective Date until such time as both (i) the Investor Ownership Threshold is no longer satisfied and (ii) there is no longer an Investor Director serving as a member of the Shareholders hereby agrees thatBoard (the “Standstill Period”), from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Investor shall not, and shall cause its subsidiaries and Representatives acting on its and its respective subsidiaries’ behalf not to, directly or indirectly, unless indirectly (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:including through any arrangements with a third party):
(i) sellexcept for Equity Securities of the Company received by way of stock splits, transferstock dividends, tenderreclassifications, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option recapitalizations or other agreement with distributions by the Company in respect toof its Common Stock, and Equity Securities purchased pursuant to Section 4 or consent to, acquired as a Transfer of, the record or beneficial ownership or both or voting power, result of any or all conversion of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Preferred Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
exercise of any rights under the Framework Agreement, (iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(vx) acquire, offer to acquire, or agree to acquire, propose or offer to acquire (including through the acquisition of Beneficial Ownership) (directly or indirectly, by purchase or otherwise, ) any assets Equity Securities of the Company Company; provided that this clause (i) shall not prohibit acquisitions of Common Stock, if after giving effect to such transaction, the Investor Ownership Threshold is equal to or less than 10%, or (y) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire (directly or indirectly, by purchase or otherwise) any subsidiary or division thereofEquity Securities of the Company;
(viii) make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies,” “consents” or “authorizations” to vote (as such terms are used in the rules of the Securities and Exchange Commission) to voteSEC), or seek to advise or influence any Person with respect to the voting ofof any shares of Voting Stock (other than in each case (x) the Investor and its Affiliates, any voting securities (y) in accordance with and consistent with the recommendation of the Company Board or (including by making publicly known such Shareholder’s position on any matter presented z) with respect to shareholdersthe election of a Nominee), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixiii) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with , for the purpose of voting, acquiring, holding, or disposing of, any of the foregoingVoting Stock;
(xiv) seeksubmit to the Board a proposal for or offer of, with or without conditions, any acquisition of, or merger, recapitalization, reorganization, business combination or other extraordinary transaction involving, the Company or any subsidiary thereof or any of its or their respective securities or assets, or make any public announcement with respect to such proposal or offer, in each case, except a nonpublic proposal or offer to the Company that would not reasonably be expected to require the Company to make a public announcement with respect thereto;
(v) request the Company or any way which may be reasonably likely to require, involve of its subsidiaries directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend or waive any provision of this Section 3.1 amendedAgreement, modified or waived;
(xi) otherwise takein each case, directly or indirectly, any actions with except a nonpublic request to the purpose of avoiding or circumventing any provision of this Section 3.1 or which could Company that would not reasonably be expected to have require the effect Company to make a public announcement with respect thereto;
(vi) contest the validity or enforceability of preventingany provision contained in this Section 6;
(vii) call, impedingor seek to call, interfering with or adversely affecting the consummation a meeting of the transactions contemplated stockholders of the Company or initiate any stockholder proposal, or initiate or propose any action by written consent, in each case for action by the Merger Agreementstockholders of the Company (other than, including in each case, with respect to the Merger, election of a Nominee in accordance with the terms hereof);(viii) nominate candidates for election to the Board or such Shareholder’s ability to perform its obligations under otherwise seek representation on the Board (except as expressly set forth in this Agreement. Notwithstanding ) or seek the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge removal of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder the Board (or to a trust except for the benefit Investor Director); or
(ix) take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a family member) transaction or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer matter described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with this Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)6.
(b) Any Transfer Nothing in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and including this Section 6, shall prohibit or restrict (i) the number voting (as a director) or other actions taken by the Investor Director in his or her capacity as a member of shares the Board in a manner consistent with his or her fiduciary duties as a member of the Board, or (ii) Investor or any of its subsidiaries or Representatives from exercising any of its, his, or her rights or remedies under or in connection with any Contract with the Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares or any of Company Common Stock or voting interests shall automatically become subject to its Affiliates, including the terms of this Framework Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 2 contracts
Sources: Investment Agreement (RingCentral, Inc.), Investment Agreement (Avaya Holdings Corp.)
Standstill. (a) Each of the Shareholders hereby agrees that, from From and after the date hereof Offer Closing and until the earlier seventh anniversary of the Effective Time Offer Closing Date, neither Sponsor nor Offeror shall, and shall not permit their respective Affiliates to, and, as a condition to participating in the Equity Financing, Offeror shall cause the other Equity Investors to agree not to, acting alone or in concert with any other Person or group (within the meaning of Section 13(d)(3) of the Merger Exchange Act and the termination rules and regulations thereunder) (“Restricted Offeror Persons”), without the prior written request of a majority of the Merger Agreement, such Shareholder shall notmembers of the Company Board excluding the Offeror Related Directors, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sellacquire, transferoffer or propose to acquire or agree to acquire, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign Beneficial Ownership of any Company Common Stock or otherwise dispose of any securities convertible into or exercisable for Company Common Stock (whether by merger, operation of Law or otherwise) (collectively, a “TransferSubject Securities”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreementdirectly or indirectly, proxyacquire, consent offer or power of attorney with respect propose to acquire or agree to acquire (or request permission to do so), ownership (including, but not limited to, Beneficial Ownership) of any of the assets or deposit into businesses of the Company or any Subsidiary thereof or any securities issued by a voting trustSubsidiary of the Company, the Shareholder Owned Sharesor any rights or options to acquire such ownership (including from a third party);
(iii) enter into engage in any short sale “solicitation” (within the meaning of the Exchange Act) of proxies or consents relating to the election of directors with respect to the Common Stock Company, or substantially identical property or enter into or acquire an offsetting derivative contract with respect become a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Shareholder Owned Shares or substantially identical propertyCompany Board;
(iv) transfer make, announce, disclose publicly, propose publicly or induce or attempt to induce any of the economic interest in the Shareholder Owned Shares or enter into other Person to initiate any transaction that has such effectstockholder proposal;
(v) acquirein any manner, offer agree, attempt, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, deposit any assets securities of the Company or any subsidiary rights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or division thereofany combination of the foregoing) any securities of the Company in any voting trust or similar arrangement;
(vi) make, form or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used join in the rules formation of a “group” within the meaning of Section 13(d)(3) of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person Act with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented to shareholders)Subsidiary thereof, other than to recommend that shareholders any such “group” consisting exclusively of the Company vote in favor Offeror and any Affiliates of the Merger and the Merger AgreementOfferor;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiii) make any public announcement with respect to, finance (or submit a proposal arrange financing for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities Person or assets;
(ixii) formotherwise knowingly encourage or advise another Person, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) each case in connection with any of the foregoing;
(xviii) seekpublicly announce any intention, in plan or arrangement inconsistent with the foregoing; or
(ix) seek or request permission to do any way which may be reasonably likely of the foregoing, publicly request to require, involve amend or trigger public disclosure of such request pursuant to applicable Law, to have waive any provision of this Section 3.1 amended2.09 (including, modified without limitation, this clause), in each case, in any manner that would require public disclosure thereof; provided, that the restrictions in clauses (iii), (iv) or waived;
(xivi) otherwise take(and clauses (vii) and (viii) to the extent relating to clauses (iii), directly (iv) or indirectly(vi)) (such restrictions collectively, any actions with the purpose of avoiding or circumventing any provision “Governance Standstill Restrictions”) of this Section 3.1 or which could reasonably be expected to have 2.09(a) shall no longer apply upon the effect earlier of preventing, impeding, interfering with or adversely affecting (A) the consummation second anniversary of the transactions contemplated later of the Offer Closing Date and the Issuance and (B) any termination of employment of ▇▇. ▇▇▇▇▇▇ by the Merger AgreementCompany Board if all of the Offeror Designees voted against such action (a “CEO Trigger Event”); provided, further that if at any time any Restricted Offeror Person engages in any of the conduct specified in the Governance Standstill Restrictions, then, (A) at no time thereafter may any Restricted Offeror Person nominate any individual who, upon taking office, would be an Offeror Related Director to replace (either upon removal or the expiration of the applicable term of) any member of the Company Board who is considered an “independent director” of the Company under Rule 303A of the NYSE Corporate Governance Standards; provided that, for the avoidance of doubt, any Restricted Offeror Person may nominate an individual who, upon taking office, would be an Offeror Related Director to replace (either upon removal or the expiration of the applicable term of) any member of the Company Board who is not considered an “independent director” and (B) at all times thereafter, the Company Board shall be permitted to form and/or maintain an independent committee (which may be a “special committee”) comprised of members of the Company Board other than Offeror Related Directors, including the Merger, or in response to such Shareholder’s ability to perform its obligations under this Agreementconduct. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions For purposes of this Agreement, (ii) Transfers a Person shall be deemed to “Beneficially Own” any securities of which such Person or any such Person’s Affiliates is considered to be a family “Beneficial Owner” under Rule 13d-3 under the Exchange Act. The “Offeror Related Directors” are, collectively, the Offeror Designees and any member of the Company Board that is an Affiliate or associate of, or has a Shareholder (material relationship with, Sponsor, any other Equity Investor or Offeror or their respective Affiliates. Notwithstanding anything to a trust for the benefit contrary in this Agreement, the shares of a family member) or to a charitable organization if (x) the Shareholder retains voting control Company Common Stock set forth on Section 4.07 of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to Offeror Disclosure Letter shall not be bound and subject to the terms and provisions Sections 1.04, 2.09 or 2.10 of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Notwithstanding Section 3.1(a2.09(a), but subject to applicable Laws, from and after the Offer Closing, (i) shall be void. Each Shareholder agrees at any time and from time to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its termstime, in the event that a Shareholder acquires record or beneficial ownership Sponsor and/or Offeror may make open market purchases of, or the power to vote or direct the voting ofa tender offer for, any additional shares at a price per share of Company Common Stock or other voting interests not less than the then prevailing market price with respect to open market purchases and not less than the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action closing price on the NYSE on trading day immediately preceding the commencement of the partiestender offer with respect to a tender offer, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the a number of shares of Company Common Stock held that, when added to the shares of Company Common Stock Beneficially Owned by the Restricted Offeror Persons prior to and following such Shareholder set forth on Schedule A hereto will purchase, would be deemed amended accordingly equal to up to, but no more than, 30% of the then outstanding shares of Company Common Stock, and (ii) the Company shall not enter into in any poison pill agreement, stockholders rights plan or similar agreement that limits Offeror’s or any of its Affiliates’ rights to acquire shares of Company Common Stock pursuant to clause (i) of this Section 2.09(b) (it being understood that the Company may enter into any poison pill agreement, stockholders rights plan or similar agreement that does not limit Offeror’s or any of its Affiliates’ rights to acquire shares of Company Common Stock pursuant to clause (i) of this Section 2.09(b), including by entering into such an agreement or plan that limits the ability of the Restricted Offeror Persons (individually or as part of any group) to acquire shares of Company Common Stock resulting in their ownership of more than 30% of the then outstanding shares of Company Common Stock or voting interests gives other persons additional rights in the event of such acquisition(s)). Notwithstanding anything to the contrary in this Section 2.09, from and after the Offer Closing, in no event shall automatically become subject the Restricted Offeror Persons be permitted to collectively Beneficially Own more than 30% of the then outstanding shares of Company Common Stock without the prior written request of a majority of the members of the Company Board excluding the Offeror Related Directors.
(c) Notwithstanding the foregoing, it is agreed that (i) the restrictions set forth in this Section 2.09 shall not (1) prevent any Restricted Offeror Person or any of their respective Affiliates from engaging in brokerage, investment advisory or management, trust and fiduciary, arbitrage, trading and lending activities in the normal and usual course of business consistent with past practice, (2) apply to any portfolio company of the Sponsor or any other Equity Investor or any of their respective Affiliates so long as such portfolio company is not (x) under the control of or (y) under common control with the Sponsor or such other Equity Investor, as applicable, or (3) restrict any Offeror Designee or other director or officer of the Company from acting, in such capacity, in accordance with his or her fiduciary duties on behalf of the Company and its stockholders under applicable Law; or (ii) a Restricted Offeror Person shall not be deemed to Beneficially Own or be the Beneficial Owner of any Subject Securities Beneficially Owned by any Person to the extent such Person acquired Beneficial Ownership from engaging in brokerage, investment advisory or management, trust and fiduciary, arbitrage, trading and lending activities in the normal and usual course of business consistent with past practice or is otherwise is a portfolio company included in the scope of sub-clause (2) or clause (i) of this Section 2.09(c); provided in any case described in this clause (c) that such Restricted Offeror Person does not provide to such entity any material non-public information concerning the Company or any Company Subsidiary and such portfolio company is not acting at the request or direction of or in coordination with such Restricted Offeror Person. Without limiting the generality of the foregoing, the terms of this Agreement.
Section 2.09 shall not limit, restrict or impair the ability of any Restricted Offeror Person or any of its Affiliates from, subject to applicable Laws, directly or indirectly, proposing, committing on, participating in and/or providing debt financing to a prospective buyer regarding a proposed or definitive transaction with the Company or its Subsidiaries (d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement including a tender offer approved by the Company Board, breaches any fiduciary duty of ) so long as the Company Board did not at any time oppose or reject the proposal (as opposed to the proposed terms) of such transaction. The term “debt” as used in the prior sentence shall include, without limitation, institutional debt (bank or otherwise), commercial paper, notes, debentures, bonds, other evidences of indebtedness, and debt securities and debt instruments that are convertible into equity securities of the Company, its Subsidiaries or any member of their respective affiliates. “Restricted Representatives” shall mean those individuals employed by or associated with a Restricted Offeror Person or any Affiliate thereof who have material non-public information concerning the Company or which otherwise challenges the Merger Agreementany Company Subsidiary.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby agrees that8.1 Until March 16, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement2026, such Shareholder EIG shall not, and shall procure that none of its Affiliates shall, either alone or with other persons, directly or indirectly, unless (i) specifically requested by Parent whether alone or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementacting in concert with others, without ▇▇▇▇▇▇’s prior written consent:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(va) acquire, offer to acquire, procure, induce or agree encourage any other person to acquireacquire any further direct or indirect interest in any shares of Common Stock or other securities of Parent or any member of its Group (“Parent Securities”) or enter into any agreement, arrangement or understanding (whether legally binding or not) or do or omit to do any act as a result of which it or any person may acquire any further direct or indirect interest in any Parent Securities;
(b) make, announce, procure or induce any other person to make or announce any firm offer, possible offer, invitation or solicitation for all or any interest in Parent Securities, or enter into any agreement, arrangement or understanding (whether legally binding or not), or do or omit to do any act as a result of which any person may become obliged to make or announce a firm offer, possible offer, invitation or solicitation for such an interest;
(c) submit any proposal which because of its terms would be required to be made public by Parent, or announce any proposal for any purchase, offer, tender, merger, consolidation, share exchange, restructuring, recapitalization or similar transaction which in any case involves Parent Securities or any material undertakings, assets or business of Parent;
(d) make or in any way participate, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” solicitation of “proxies” proxies (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) or votes or any attempt to influence votes from or by any holder of Common Stock or other Parent Securities and Exchange Commissionin connection with any vote of holders of Parent Securities (other than, in each case, in a manner that is recommended by the Board) to voteor call, or seek to advise or influence any Person with respect to the voting ofcall, any voting securities a meeting of the Company (including stockholders of Parent or initiate any stockholder proposal for action by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders stockholders of the Company vote in favor of the Merger and the Merger AgreementParent;
(viie) submit enter into any agreement or arrangement (whether or not legally binding) with any person relating to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection connected with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.; or
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby Value Base agrees that, from and after during the date hereof until Standstill Period (as defined below) (unless specifically requested in writing by the earlier Company, acting through a resolution of a majority of the Effective Time of Company’s directors not including the Merger and the termination of the Merger AgreementDesignee), such Shareholder it shall not, and shall cause each of its Affiliates (as such term is defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Exchange Act of 1934 (the “Exchange Act”)) (collectively, with Value Base, and individually, the “Value Base Affiliates”), not to, directly or indirectly, unless (i) specifically requested by Parent in any manner, alone or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementin concert with others:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase purchase, tender or exchange offer, through the acquisition of ownership interests of another person, by joining a partnership, limited partnership, syndicate or other group, through swap or hedging transactions or otherwise, any assets securities of the Company or any subsidiary rights decoupled from the underlying securities of the Company that would result in Value Base (together with the Value Base Affiliates) owning, controlling or division thereof;otherwise having any beneficial or other ownership interest in excess of 24.99% of the Ordinary Shares outstanding at such time; provided that this covenant shall not be deemed to be breached if Value Base holdings were in access of 24.99% as a result of transactions or actions that Value Base were not a party thereto;
(viii) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange CommissionAct) or consents to votevote or advise, or seek to advise encourage or influence any Person person with respect to the voting of, of any voting securities of the Company (including by making publicly known or any securities convertible or exchangeable into or exercisable for any such Shareholder’s position on securities for the election of individuals to the Board, or become a “participant” in any matter presented to shareholders), other than to recommend that shareholders contested “solicitation” for the election of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit directors with respect to the Company any shareholder proposal under Rule 14a-8 (as such terms are defined or used under the Exchange Act;
(viii), in each case, if such solicitation or actions are inconsistent with Sections 2(a)(iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions2(c) any extraordinary transaction involving an acquisition of herein. It is clarified that Value Base and the Company’s securities or assets;
(ix) form, join or Designee shall be free to engage in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with discussions, solicitation or any of the foregoing;
(x) seekother actions related to plans, in any way which may be reasonably likely to require, involve proposals or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers that are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory not related to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family membermatters explicitly set forth in Sections 2(a)(iii) or to a charitable organization if (x2(c) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, herein.
(iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory seek representation on, or nominate any candidate affiliated with Value Base to the Parent to be bound and subject to the terms and provisions of this AgreementBoard, except as set forth herein, and limited to one (iv1) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer Designee (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence)but, including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, will be able to propose and act to nominate qualified non-affiliated Board members);
(b) Value Base acknowledges and agrees that Value Base and the number of shares of Company Common Stock held Value Base Affiliates shall not seek to do indirectly through the Designee anything that would be prohibited if done by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly Value Base or the Value Base Affiliates, and such shares of Company Common Stock or voting interests shall automatically become subject that any failure to comply with the terms of this AgreementAgreement applicable to the Designee shall be deemed to be a failure to so comply by Value Base.
(c) Notwithstanding the Designee's votes as a member of the Board or a member of the Nominating, Governance and Sustainability Committee, Value Base as a shareholder undertakes to vote all of the Ordinary Shares then held by Value Base (X) (i) in the annual meeting of shareholders to be held in 2024, in favor of the entire class of candidates that is supported by a majority of the board of the Company, and against any other candidates not supported by a majority of the board of the Company, (ii) in the annual meeting of shareholders to be held in 2025, in favor of at least two members of the class of candidates that are supported by a majority of the board of the Company (i.e., Value Base may object to only one candidate) and against all other candidates not supported by a majority of the board of the Company (but one such nominee), and (iii) in the annual meeting of shareholders to be held in 2026, in favor of at least one member of the class of candidate nominated that is supported by a majority of the board of the Company (i.e., Value Base may object to two candidates) and against all other candidates not supported by a majority of the board of the Company (but two such nominees) and (Y) against any shareholder proposal that results in an increase or decrease to the size of the Board as set in accordance with the Articles of Association of the Company, provided however that if Value Base shall not vote in accordance with the provisions of this Section 2(c), the Designee shall resign from the Board, and Value Base agrees to cause the Designee to resign from the Board if the Designee fails to do so.
(d) Prior to the termination For purposes of this Agreement in accordance with its termsthe terms “person” or “persons” shall mean any individual, each Shareholder agrees that it will not bringcorporation (including not-for-profit), commencegeneral or limited partnership, institutelimited liability or unlimited liability company, maintainjoint venture, prosecuteestate, join trust, association, organization or voluntarily aid other entity of any Action in law kind or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementnature.
Appears in 1 contract
Standstill. (a) Each of the Shareholders Purchaser hereby agrees that, from and after the date hereof until the earlier Standstill Termination Date, unless specifically consented in writing by the Company to do so, neither such Purchaser nor its Affiliates will, or will cause or knowingly permit any of the Effective Time of the Merger and the termination of the Merger Agreementits or their directors, such Shareholder shall notofficers, partners, managers or employees to, in any manner, directly or indirectly, unless : (i) specifically requested by Parent effect or (ii) expressly contemplated by the terms of this Agreement seek, initiate, offer or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into cause or participate in or in any contractway advise or, option assist any other person to effect or other agreement with respect toseek, initiate, offer or consent topropose (whether publicly or otherwise) to effect or cause or participate in, a Transfer of, the record any acquisition of any equity or equity-linked securities (or beneficial ownership thereof); any tender or both exchange offer, merger, consolidation or voting powerother business combination involving the Company; any recapitalization, of any restructuring, liquidation, dissolution or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale other extraordinary transaction with respect to the Common Stock Company; or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Company, provided, however, that notwithstanding the foregoing, nothing in this clause (including by making publicly known such Shareholder’s position on i) shall prevent or limit (a) the ability of any matter presented to shareholders), other than to recommend that shareholders director of the Company vote in favor that is affiliated with such Purchaser to acquire, exercise or dispose of any stock options or other equity securities of the Merger and the Merger Agreement;
(vii) submit to Company received as compensation for serving as a director, or perform his or her duties as a director of the Company or (b) the Purchasers and their Affiliates (and their respective directors, officers, partners, managers or employees) from purchasing equity or equity-linked securities of the Company, provided such purchases neither (x) cause any shareholder proposal under Rule 14a-8 of Purchasers or their Affiliates, as a “person” or as part of a “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), to become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act;
(viii) make any public announcement with respect to), directly or submit a proposal forindirectly, or offer of (with or without conditions) any extraordinary transaction involving an acquisition more than 27.5% of the total voting power of the Company’s voting stock nor (y) result in the aggregate of all equity or equity-linked securities held by the Purchaser and their Affiliates, together with the Underlying Securities, to amount to more than 27.5% of the outstanding Common Stock on a Fully-Diluted Basis; provided, further, that, notwithstanding anything to the contrary in this Section 6.8, at any time or assets;
from time to time following receipt of any Requisite Stockholder Approval (ixas defined in either that certain Warrant Agreement, dated as of June 16, 2023, by and among the Company and the other signatories thereto (the “Series C Warrant Agreement”) or that certain Certificate of Designations establishing the Company’s 6.00% Series C | Cumulative Perpetual Preferred Stock), the Purchasers and their Affiliates will not be prohibited from exercising, converting or exchanging any securities of the Company then-held (including the Warrants and the warrants issued under the Series C Warrant Agreement) for shares of Common Stock (for purposes of this clause (i), if any Requisite Stockholder Approval is obtained, then such approval will be deemed to constitute a purchase of equity securities by the Purchasers or their Affiliates in an amount equal to the amount by which the beneficial ownership of the Purchasers or their Affiliates increases as a result of such approval); (ii) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with respect to any securities of the Company that seeks to do any of the actions prohibited by clause (i) above; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, provided, however, that notwithstanding the foregoing;
, nothing in this clause (xiii) seekshall prevent or limit the ability of any director of the Company that is affiliated with such Purchaser to serve as a director, in or perform his or her duties as a director of the Company or any way which may be reasonably likely to require, involve or trigger public disclosure related activities of such request pursuant to applicable LawPurchaser’s officers, to have employees or representatives in support of such director; (iv) take any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or action which could reasonably be expected to have force the effect of preventing, impeding, interfering with or adversely affecting the consummation Company to make a public announcement regarding any of the transactions contemplated types of matters set forth in this Section 6.8 (other than actions taken by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge director of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts the performance of his or her duties as are necessary such); or (v) enter into any agreements, discussions or arrangements with any third party with respect to satisfy any of the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer foregoing (other than ordinary course discussions by a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty director of the Company Board in the performance of his or any member thereof or which otherwise challenges the Merger Agreementher duties as such).”
Appears in 1 contract
Standstill. Saba and each Shareholder (aeach, for purposes of this Section 5, a “Standstill Person”) Each of the Shareholders hereby covenants and agrees with VCIF and Carlyle that, from and after the date hereof until the earlier of the Effective Time of the Merger and through the termination of this Agreement pursuant to Section 8, it will not, and will cause its respective principals, directors, general partners, members, officers, employees, agents (in each case, acting on such Standstill Person’s behalf, and for the Merger Agreementavoidance of doubt, excluding the Saba RICs (as defined below)), affiliated persons (as defined in the Investment Company Act and which, for the avoidance of doubt, shall exclude the Saba RICs but shall include (without limitation) any account or other pooled investment vehicle now or in the future managed, advised or sub-advised by Saba or its affiliated persons), the Representatives under such Shareholder Standstill Person’s control and any other Persons controlled by or under common control with Saba, Saba Capital Management GP, LLC or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (which shall notnot include the Saba RICs) (all such Persons, collectively, as to such Standstill Person, the “Standstill Person Entities”), not to, directly or indirectly, alone or in concert with other Persons (including by directing, requesting or suggesting that any other Person take any of the actions set forth below), unless specifically permitted in writing in advance by the respective Carlyle Entity, take any of the actions set forth below with respect to a Carlyle Entity:
(ia) effect, seek, offer, engage in, propose (whether publicly or otherwise and whether or not subject to conditions) or cause, participate in or act to, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or cause, participate in or act to (other than as specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:):
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (or become a “participant” in any such “solicitation” as such terms are used defined in Regulation 14A under the rules Exchange Act, including any otherwise exempt solicitation pursuant to clause (iv) of the Securities Rule 14a-1(l)(2) and Exchange Commissionincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b), in each case, with respect to securities of a Carlyle Entity (including, without limitation, any solicitation of consents to act by written consent or call a special meeting of shareholders);
(ii) knowingly encourage or advise any other Person or knowingly assist or act to vote, assist any Person in so encouraging or seek to advise or influence advising any Person with respect to the voting ofgiving or withholding of any proxy, any voting securities of the Company consent or other authority to vote (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than such encouragement or advice that is with respect to recommend that shareholders a Carlyle Entity, consistent with the recommendation of such Carlyle Entity’s board or other governing body or such ▇▇▇▇▇▇▇ Entity’s investment adviser or solely amongst the Company vote in favor of the Merger and the Merger AgreementStandstill Person Entities) with respect to a Carlyle Entity;
(viiiii) submit to engage, directly or indirectly, in any short sale that derives all or substantially all of its value from a decline in the Company any shareholder proposal under Rule 14a-8 under market price of VCIF or Carlyle Secured Lending, Inc. (for the Exchange Actavoidance of doubt, such Standstill Person and its Affiliates may short-sell broad based indices and Carlyle);
(viiiiv) make any public announcement (i) tender or exchange offer for securities of a Carlyle Entity, or any merger, consolidation, business combination or acquisition or disposition of assets of a Carlyle Entity, or (ii) recapitalization, restructuring, open-ending, liquidation, dissolution or other similar extraordinary transaction with respect toto a Carlyle Entity (it being understood that the foregoing shall not restrict any Standstill Person from tendering securities of a Carlyle Entity, receiving payment for securities of a Carlyle Entity or submit otherwise participating in any transaction contemplated in this Section 5(a)(iv) in a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition manner on the same basis as other passive equityholders of the Companyapplicable Carlyle Entity or from participating in a manner in any such transaction that has been approved by the applicable Carlyle Entity’s securities board or assetsother governing body, subject to the terms of this Agreement);
(ixb) form, join or in any way participate in a any “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange ActAct and Rule 13d-5(b)(1) thereunder) (other than a group that consists solely of members of the Standstill Person Entities and/or Saba RICs) with respect to a Carlyle Entity;
(c) deposit any securities of a Carlyle Entity in any voting trust or subject any securities of a Carlyle Entity to any arrangement or agreement with respect to the voting of the securities of a Carlyle Entity, as applicable, including, without limitation, lend any securities of such Carlyle Entity to any Person for the purpose of allowing such Person to vote such securities in connection with any shareholder vote or consent of such Carlyle Entity, as applicable, or to sell such securities, other than any such voting trust, arrangement or agreement solely among the members of such Standstill Person and its Affiliates;
(d) seek, alone or in concert with others, (i) election or appointment to, or representation on, the governing body of a Carlyle Entity, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the board or other governing body of a Carlyle Entity, (ii) the removal or resignation of any member of the board or other governing body of a Carlyle Entity, (iii) the removal or replacement of ▇▇▇▇▇▇▇ or any of its Affiliates as the investment adviser to VCIF or any other Person as the investment adviser to a Carlyle Entity, (iv) the alteration, modification, or termination of the Investment Advisory Agreement or an investment advisory (or similar) agreement of a Carlyle Entity, or (v) to knowingly encourage any such actions in clauses (i) through (iv);
(e) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of a Carlyle Entity (pursuant to Rule 14a-8 under the Exchange Act or otherwise), or take any action (other than in accordance with this Section 5) with respect to any shareholder proposal or written consent in a manner that is not supported by the VCIF Board or the board or other governing body of a Carlyle Entity, as applicable;
(f) make a request for a shareholder list or other books and records of a Carlyle Entity under Delaware law or any other statutory or regulatory provision;
(g) seek to control or publicly influence a Carlyle Entity or the board or other governing body, the Carlyle Entity’s investment adviser or the policies of the Carlyle Entity;
(h) institute, solicit, knowingly assist or join any litigation, arbitration or other proceeding against or involving any Carlyle Entity or any of the current or former directors, trustees or officers (including derivative actions) of any Carlyle Entity; provided, however, that, for the avoidance of doubt, the foregoing shall not prevent a Standstill Person from (A) bringing litigation to enforce the provisions of this Agreement or the Transaction Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, a Carlyle Entity against a Standstill Person, (C) being included as a passive member within a class of stockholders in a class-action lawsuit, and receiving compensation as a passive member of such class, or (D) responding to or complying with a validly issued legal process;
(i) make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the board or other governing body of a Carlyle Entity, (ii) any change in the capitalization, share purchase program, dividend policy or distribution policy of a Carlyle Entity, (iii) any other material change in the management, business or corporate structure of a Carlyle Entity, or (iv) any waiver, amendment or modification to the Organizational Documents or the organizational documents of a Carlyle Entity;
(j) enter into any negotiations, arrangements or understandings with any Person with respect to any of the foregoing;, or advise, knowingly assist or knowingly encourage others to take any action with respect to any of the foregoing; or
(k) publicly request (x) seek, in a Carlyle Entity or the boards or other governing bodies of a Carlyle Entity or any way which may be reasonably likely to require, involve of their respective Representatives amend or trigger public disclosure of such request pursuant to applicable Law, to have waive any provision of this Section 3.1 amended, modified or waived;
5 (xiincluding this sentence) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees the governing bodies of any of the Carlyle Entities to specifically invite the Standstill Person Entities to take any of the actions prohibited by this Section 5. Nothing in writing reasonably satisfactory this Section 5 shall be deemed to prohibit the Parent to be bound and subject to Standstill Person Entities from communicating privately with the terms and provisions of this Agreementdirectors, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementofficers, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect advisors of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer Carlyle Entity (including providing, if required pursuant ▇▇▇▇▇▇▇) so long as such private communications would not be reasonably expected to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting oftrigger public disclosure obligations for ▇▇▇▇, any additional shares Shareholder, ▇▇▇▇▇▇▇ or any Carlyle Entity. For the avoidance of doubt, clients of Saba that are investment companies registered under the Investment Company Common Stock or other voting interests with respect to Act of 1940, as amended (the Company“Saba RICs”) are not parties to, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shallare not restricted by and are not governed by, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Settlement and Voting and Support Agreement (Carlyle Group Inc.)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of Except as otherwise provided in this Agreement or the Merger Agreement:
Certificate of Designation, so long as the Purchaser Representative has the right to designate or nominate a director to the Board of Directors pursuant to Section 4.1, without the prior written consent of the Company, it will not at any time, nor will it cause or permit any of its Affiliates to: (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 person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) sellany acquisition of any equity securities (or beneficial ownership thereof), transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign rights or otherwise dispose of options to acquire any equity securities (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”beneficial ownership thereof), or enter any securities convertible into or exchangeable for any contract, option or other agreement with respect to, or consent to, a Transfer of, the record such equity securities (or beneficial ownership or both or voting powerthereof), of any or all of the Shareholder Owned Shares;
Company, (ii) enter into any voting agreementtender or exchange offer, proxy, consent merger or power of attorney with respect to, other business combination involving the Company or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock its Subsidiaries or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeits Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or in any way participate in, directly or indirectly, (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company or any of its Affiliates; (including by making publicly known such Shareholder’s position b) otherwise act to seek representation on any matter presented or to shareholders), other than to recommend that shareholders control or influence the management or policies of the Company vote in favor or to obtain representation on the Board of Directors of the Merger and Company (beyond their right to do so based on their representation on the Merger Agreement;
Board pursuant to Section 4.1); (viic) submit to the Company any shareholder proposal under Rule 14a-8 under to the Exchange Act;
Company, (viiid) make publicly propose any public announcement with respect to, change of control or submit a proposal for, or offer of (with or without conditions) any extraordinary other material transaction involving an acquisition of the Company’s securities Company or assets;
(ixe) form, join support or encourage any third party in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with doing any of the foregoing;
; it being understood that nothing in this Section 4.4 shall (w) restrict or prohibit the Series C Director or Purchaser Nominee, as applicable, from taking any action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary or appropriate in light of his or her fiduciary duties as a member of the Board of Directors, (x) seek, in restrict or prohibit the making or submission to the Company and/or the Board of Directors any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with proposal by the purpose of avoiding or circumventing any provision of this Section 3.1 or which could Purchaser Parties that would not reasonably be expected to have result in the effect of preventingCompany being obligated to publicly disclose such proposal, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to restrict or prohibit the Parent to be bound and subject to the terms and provisions of this AgreementPurchaser’s acquisition, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementdisposition, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options sale or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), Purchased Shares (including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (the accretion of dividends thereon and any dividends payable in any event within 24 hours after consummation thereofother security) notify Parent or Conversion Shares issuable upon conversion of the consummation of such Permitted Transfer and the material details thereofPurchased Shares, including the identity of the acquirorin each case, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
Agreement and the Certificate of Designation or (dz) Prior limit or restrict any Transfer pursuant to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board a Permitted Loan or any member thereof foreclosure thereunder or which otherwise challenges the Merger AgreementTransfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Standstill. (a) Each of a. During the Shareholders hereby agrees thatStandstill Period, from and after except with the date hereof until prior written consent of, or waiver by, the earlier of Company or otherwise pursuant to approval by the Effective Time of the Merger and the termination of the Merger AgreementCompany Board, such Shareholder Aflac shall not, and shall not permit any of its controlled Affiliates to, directly or indirectly, unless :
i. acquire or obtain (i) specifically requested by Parent or (ii) expressly contemplated other than solely as a result of acts taken by the terms Company, such as share repurchases) any shares of this Agreement Company Common Stock, which would result in Aflac and its controlled Affiliates collectively Beneficially Owning equal to or in excess of 10% of the Merger Agreement:outstanding shares of Company Common Stock (the “Ownership Cap”) as reported in the Company’s most recent annual report on Form 10-K filed by the Company with the SEC;
(i) sellii. effect, transferseek, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into any contract, option cause or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeparticipate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate inin (A) any acquisition of Company Securities (other than in accordance with Section 2.1(a)(i)) outstanding from time to time, directly except as otherwise contemplated by this Agreement; (B) any tender or indirectlyexchange offer, merger or other business combination involving the Company or any of its Subsidiaries; (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries; or (D) any “solicitation” of “proxies” (as such terms are used in Regulation 14A promulgated under the rules Exchange Act) of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementCompany;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect toiii. except as may be specifically contemplated by this Agreement, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined such term is used in Section 13(d)(3) under of the Exchange Act) with respect to the Company Securities;
iv. make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the Company or its assets or the Company Securities;
v. otherwise act, alone or in connection concert with others, to seek to control or influence the management of the Company or the Company Board;
vi. take any action which would require the Company to make a public announcement regarding any of the foregoing;types of matters set forth in Section 2.1(a)(ii)-(v); or
vii. enter into any agreement with any third party with respect to any of the foregoing (xthe restrictions set forth in the foregoing clauses (i) seekthrough (vii), the “Standstill Restrictions”); provided that none of the Standstill Restrictions shall prevent, restrict, encumber or limit in any manner Aflac or any of its controlled Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement or the Strategic Alliance Agreement, in each case, in accordance with the terms and provisions hereof and thereof.
b. Notwithstanding the foregoing, the Standstill Restrictions shall terminate upon the occurrence of any way which may be reasonably likely to require, involve of the following events:
i. any Person or trigger public disclosure “group” (as such term is used in Section 13(d)(3) of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified the Exchange Act) is or waived;
(xi) otherwise takebecomes the Beneficial Owner, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation voting securities of the transactions contemplated Company representing more than 50% of the combined voting power of the Company’s then outstanding voting securities;
ii. the Company consummates a merger, consolidation, share exchange or other similar transaction (a “Fundamental Transaction”) with any other Person, other than a Fundamental Transaction in which the voting securities of the Company that are outstanding immediately prior to such Fundamental Transaction continue to represent (either by remaining outstanding or by being converted into voting securities of the Merger Agreement, including surviving or parent entity) at least a majority of the Merger, or combined voting power immediately after such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Fundamental Transaction of (i) the Company’s outstanding securities or (ii) the surviving or parent entity’s outstanding securities;
iii. the security holders of the Company approve a pledge plan of Shareholder Owned Shares required under complete liquidation or winding-up of the Company;
iv. the sale or disposition (in one transaction or a series of related transactions) of all or substantially all of the Company’s assets is consummated;
v. a change of a majority of the membership of the Company Board (excluding the cumulative effect of departures and appointments of directors approved by the Company Board and any credit facility in existence change approved by a majority of the directors serving on the Company Board prior to such change) (each event set forth in the foregoing clauses (i) through (v) occurring after the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly constitute a “Change of such acquisitionControl”); or
vi. Such shares of the Company Common Stock enters into any definitive agreement to consummate, or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees publicly announces that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Companyplans to, or the approval will engage in a strategic process to, enter into, any Change of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger AgreementControl.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby The Fund covenants and agrees that, from for so long as the Fund owns Shares that represent 30% or more of total issued and after the date hereof until the earlier outstanding shares of the Effective Time Company’s Common Stock, and unless such shall have been specifically invited in writing by the Company, neither the Fund (including its general partner, managing limited partner and their respective principals) nor any of the Merger and the termination of the Merger Agreement, such Shareholder shall notits directors or officers will in any manner, directly or indirectly, unless (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or cause any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect (i) specifically requested by Parent or any acquisition of any securities (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership thereof) or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary of its Subsidiaries, (ii) any tender or division thereof;
exchange offer, merger or other business combination involving the Company or any of its Subsidiaries, (viiii) makeany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries, or in any way participate in, directly or indirectly, (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Company, (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(viib) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, form or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act), (c) otherwise act, alone or in connection concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing;
. The Fund also agrees during such period not to request the Company (x) seekor its directors, in any way which may be reasonably likely to requireofficers, involve employees, advisors or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeagents), directly or indirectly, any actions with the purpose of avoiding to amend or circumventing waive any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, paragraph (c) (including the Merger, or such Shareholder’s ability to perform its obligations under this Agreementsentence). Notwithstanding the foregoing, this Section 9(b) shall not prohibit the following Transfers are expressly permitted under this Agreement Fund from passively participating in any of the events set forth in (each such Transfera) though (e) above, a "Permitted Transfer"): so long as (i) a pledge the Fund is not in any way involved in initiating or soliciting other commitments in support of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound events, and subject to the terms and provisions of this Agreement, (ii) Transfers the Fund’s activities with respect thereto are limited solely to a family member of a Shareholder (considering the proposed action and electing to participate or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company not participate in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)action.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Master Purchase Agreement (Wells Timberland REIT, Inc.)
Standstill. (a) Each of During the Shareholders hereby agrees thatRestricted Period, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall Investor Group will not, directly or indirectlyindirectly (in each case, unless except as expressly permitted by this Agreement):
(d) with respect to the Company or the Voting Securities, (i) specifically requested by Parent make, assist, participate in, or advise, assist or knowingly encourage any Person with respect to, any “solicitation” (ii) expressly as such term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the terms Securities Exchange Act of this Agreement or 1934 (the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “TransferExchange Act”), or enter into any contract, option or other agreement ) of proxies with respect to, or consent to, a Transfer from the holders of, the record or beneficial ownership or both or voting powerany Voting Securities, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale including with respect to the Common Stock election or substantially identical property removal of directors or enter into any other matter or acquire an offsetting derivative contract proposal; (ii) become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies; (iii) seek to advise, assist or knowingly encourage any Person, or knowingly assist any Person in so advising or encouraging any other Person, with respect to the Shareholder Owned Shares giving or substantially identical property;
withholding of any proxy or other authority to vote or act; or (iv) transfer any of the economic interest in the Shareholder Owned Shares initiate or enter into any transaction that has such effect;
(v) acquire, offer to acquireparticipate in, or agree advise, assist or knowingly encourage any Person to acquire, directly initiate or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitationvote no,” of “proxieswithhold” or similar campaign;
(e) initiate, propose or otherwise “solicit” (as such terms are term is used in the proxy rules of the Securities and SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange CommissionAct) the Company’s stockholders for the approval of any stockholder proposal, whether made pursuant to voteRule 14a-4 or Rule 14a-8 promulgated under the Exchange Act, or seek to advise otherwise, or influence cause or knowingly encourage any Person to initiate or submit any such stockholder proposal;
(f) with respect to the Company or the Voting Securities, (i) communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act (provided, that the Investor Group shall not be prohibited or restricted from disclosing its bona fide voting intention on any Extraordinary Transaction (as defined below) pursuant to Rule 14a‑1(l)(2)(iv) promulgated under the Exchange Act); or (ii) conduct, or assist any Person in the conducting of, any voting securities type of binding or nonbinding referendum;
(g) call or attempt to call, or request the call of, alone or in concert with others, or advise, assist or knowingly encourage any Person to call, any meeting of Company’s stockholders, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as may be amended or amended and restated from time to time, the “Charter”) or the Bylaws, including a “town hall meeting”;
(i) seek, alone or in concert with others, or advise, assist or knowingly encourage any Person to seek, any individual’s election or appointment to, or any representation on, the Board; (ii) attempt to nominate or propose or recommend the nomination of, or advise, assist or knowingly encourage any Person to nominate or propose or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or advise, assist or knowingly encourage any Person to seek, the removal of any member of the Company Board;
(i) other than solely with other members of the Investor Group with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), maintain, advise or participate in a partnership, limited partnership, syndicate or other group, including by making publicly known such Shareholder’s position on a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any matter presented Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to shareholdersany voting trust, arrangement or agreement (whether or not in writing), other than to recommend that shareholders any such voting trust, arrangement or agreement solely among the members of the Company vote Investor Group and otherwise in favor of the Merger and the Merger accordance with this Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiii) make any public announcement with respect to, offer or submit a proposal for, or offer of (with or without conditions) with respect to, or seek, propose or indicate an interest in, any extraordinary transaction involving an acquisition tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, sale of all or substantially all of the Company’s assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company, any of its subsidiaries or any of its or their respective securities or assetsassets (each, an “Extraordinary Transaction”) (provided, that nothing in this clause (i) shall prohibit the Investor Group from making any confidential proposal to the Company after receiving prior written consent of the Board); (ii) solicit any Person not a party to this Agreement (a “Third Party”) to make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or advise, assist or knowingly encourage or support any Third Party in making such an offer or proposal; (iii) publicly comment on any proposal for an Extraordinary Transaction (provided, that this clause (iii) shall not prevent such public comment made in a manner consistent with Section 3(c)); or (iv) take any action that would, or would reasonably be expected to, require public disclosure regarding any of the types of matters set forth in this Section 3(g) (it being understood that this Section 3(g) will not restrict any member of the Investor Group from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as any other stockholder of the Company);
(ixk) formmake or submit any proposal, join request or statement with respect to, or otherwise take any action in relation to, or advise, assist or knowingly encourage any way participate Person in seeking, (i) any change in the Board or management of the Company, including any plan or proposal to change the number or term of directors serving on the Board or to fill any vacancy on the Board; (ii) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (iii) any other material change in the Company’s management, business, operations, strategy or corporate structure; (iv) any waiver of, or amendment or modification to, the Charter or the Bylaws; or (v) any action that could cause a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; provided, that, notwithstanding anything to the contrary set forth in this Agreement, in the event that the Company reduces its quarterly dividend to less than $0.075 per share at any time after the date hereof, unless the Board determined, after consultation with counsel, that such reduction would be consistent with the Board’s fiduciary duties, the Investor Group shall not be restricted from making or submitting any proposal, request or statement with respect to, or otherwise taking any action in relation to, or advising, assisting or knowingly encouraging any Person in seeking to cause the Company to issue, declare and pay a quarterly dividend of $0.075 per share;
(l) demand a copy of the Company’s list of stockholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of law providing for stockholder access to books and records (including lists of stockholders) of the Company;
(m) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(n) engage in, or advise, assist or knowingly encourage any Person to engage in, any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than the purchase or sale of call or put options on any major exchange conducted through a brokerage account, without the identity of the seller or purchaser of options being known) that includes, relates to, or derives any significant part of its value from, a decline in the market price or value of the securities of the Company;
(o) compensate, or enter into any agreement, arrangement or understanding (whether written or oral) to compensate, any person for his or her service as a director of the Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to the Company or its securities;
(p) become an “Acquiring Person” (as such term is defined in the Rights Agreement), or otherwise engage in or make, or advise, assist or knowingly encourage any Person to engage in or make, any acquisition, offer, agreement or proposal to acquire, whether by purchase, tender or exchange offer, or otherwise direct any Third Party in the acquisition of any securities of the Company, so that any such Person or Third Party would become an “Acquiring Person” (as such term is defined in the Rights Agreement);
(q) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, or direct any Third Party in the acquisition of, (i) any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the Investor Group beneficially owning, controlling or otherwise having any voting interest over 9.99% (the “Ownership Cap”) or more of the then‑outstanding Voting Securities; provided, that to the extent the Investor Group (together with its Affiliates) exceeds the Ownership Cap solely by reason of any decrease in the number of the Company’s total outstanding equity securities, stock repurchases, reclassifications, stock combinations or stock cancellations by the Company and the Investor Group does not purchase or otherwise acquire, or offer, seek, propose, or agree to acquire, any additional ownership (including beneficial ownership as defined in Section 13(d)(3) Rule 13d-3 under the Exchange Act) in connection with of any shares of the foregoingCompany’s common stock (“Common Stock”), then such increase in the Investor Group’s beneficial ownership shall not be deemed to breach or otherwise violate this Section 2(n), or (ii) any assets or liabilities of the Company;
(xr) seekother than through open market broker sale transactions for which the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer, assign or otherwise dispose, or agree to sell, offer, assign or otherwise dispose, through swap or hedging transactions or otherwise, any securities of the Company to any Third Party that is a Known Activist or has known plans to engage in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waivedactivism;
(xis) otherwise take, directly make or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which disclose in a manner that could reasonably be expected to have the effect of preventingbecome public any intent, impedingpurpose, interfering plan or proposal that is inconsistent with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and except as required by law or applicable stock exchange listing;
(t) act, including by making public announcements or speaking to reporters or members of the number media (whether “on the record” or on “background” or “off the record”), to seek (i) to influence the Company’s stockholders, employees, officers or directors with respect to the Company’s governance, employees, management, policies, operations, strategy, balance sheet, capital allocation, marketing approach or business configuration or any Extraordinary Transaction; (ii) to obtain representation on the Board; or (iii) the removal or replacement of shares any member of the Board in any manner or the filling of any vacancy on the Board;
(u) make a demand for, or seek to initiate, or advise, assist or knowingly encourage any Person to make a demand for or initiate, an investigation of the Company Common Stock held or any of the Company’s current or former directors or officers, including by seeking to engage any private investigations firm or other Person to conduct an investigation;
(v) enter into any discussions, negotiations, agreements or understandings (in all cases whether written or oral) with any Person with respect to any action the Investor Group is prohibited from taking pursuant to this Section 3, or advise, assist, knowingly encourage or seek to persuade any person to take any action or make any statement with respect to any such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares action, or otherwise take or cause any action or make any statement inconsistent with any of Company Common Stock the foregoing; or
(w) make any request or voting interests shall automatically become subject submit any proposal to amend or waive the terms of this Agreement.
(d) Prior Agreement other than through non-public communications with the Company that would not be reasonably likely to trigger a public disclosure obligation for any Party. Notwithstanding anything to the termination contrary in this Agreement, nothing in this Agreement, including the restrictions in this Section 3, shall (i) prohibit or restrict any member of the Investor Group from (A) making any true and correct statement to the extent required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over such member of the Investor Group so long as such request did not arise as a result of any action by any member of the Investor Group; or (B) communicating privately with any director or executive officer of the Company in a manner consistent with the terms of this Agreement and/or in accordance a manner consistent with its terms, each Shareholder agrees communications that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery may be reasonably made by all stockholders of the Merger Agreement by the Company, 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 privately requesting from the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or management a waiver of any member thereof provision of this Agreement, or which (ii) prevent or otherwise challenges the Merger Agreementaffect any obligations or performance of obligations by any Party in connection with Section 2 or Section 3(a).
Appears in 1 contract
Sources: Letter Agreement (Immersion Corp)
Standstill. Until the date that is eighteen (a18) Each of months after the Shareholders hereby date the Purchaser Representative is no longer entitled to designate any directors pursuant to Section 4.5, the Purchaser agrees that, from and after without the date hereof until the earlier prior approval of the Effective Time Board of Directors, the Merger and the termination of the Merger Agreement, such Shareholder shall Purchaser will not, directly or indirectly, unless through its subsidiaries or any other Persons, or in concert with any Person, or as a “group” (ias defined in Section 13 of the Exchange Act) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementwith any Person:
(ia) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquirepurchase, offer to acquirepurchase, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise acquire “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any Class A Common Stock or Class B Common Stock, or any assets securities convertible or exchangeable into Class A Common Stock or Class B Common Stock, excluding any shares of Class A Common Stock, Convertible Preferred Stock or other securities acquired pursuant to a conversion of the Company Convertible Preferred Stock or any subsidiary or division thereofotherwise acquired pursuant to the Transaction Documents;
(vib) make, or in any way participate in, directly or indirectly, any “solicitation” solicitation of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) proxies to vote, or seek to advise or influence any Person person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented of its Subsidiaries, or seek or propose to shareholders)influence, other than to recommend that shareholders advise, change or control the management, board of directors, policies, affairs or strategy of the Company vote by way of any public communication or other communications to securityholders intended for such purpose, except, in favor of the Merger and the Merger Agreementeach case, with respect to any Requisite Stockholder Approval;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiic) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any acquisition of or extraordinary transaction involving an acquisition the Company or any of the Company’s Subsidiaries or any of their respective securities or assets;
(ixd) formeffect or seek to effect (including, join without limitation, 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 “group” 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 any of its Subsidiaries; or
(as defined in Section 13(d)(3e) under the Exchange Act) enter into any discussions, negotiations, arrangements or understandings with or form a group with, any third party in connection with such third party’s taking, planning to take, or seeking to take any of the foregoing;
actions prohibited by clauses (xa) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision through (d) of this Section 3.1 amended4.1 or otherwise act, modified alone or waived;
(xi) otherwise takein concert with others, directly to seek to control or indirectlyinfluence the Board of Directors or the management or policies of the Company, any actions with the purpose of avoiding or circumventing any provision of including its Subsidiaries; provided, however, that nothing in this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder4.1 will limit (I) any Carlyle Party’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal vote (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof4.5(c) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted other Transaction Documents) or Transfer (including providing, if required subject to Section 4.2) its Common Stock or Preferred Stock or otherwise exercise rights under its Preferred Stock or (II) the ability of any director designated by the Purchaser Representative pursuant to Section 4.5 or elected pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power Series A-1 Certificate to vote or direct otherwise exercise its fiduciary duties as a member of the voting ofBoard of Directors, (III) the ability of any additional shares of Company Common Stock observer or other voting interests with respect director appointed or designated by the Purchaser Representative pursuant to Section 4.5 or pursuant to the CompanySeries A-1 Certificate to seek (but solely in such capacity as observer or director) to participate fully as an observer to or director on the Board of Directors, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action (IV) the ability of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, Purchaser Representative or the approval holders of Convertible Preferred Stock to exercise their rights to appoint directors and observers pursuant to Section 4.5 or the Merger Agreement by the Company BoardSeries A-1 Certificate, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementas applicable.
Appears in 1 contract
Standstill. (a) Each In consideration of the Shareholders transactions contemplated by this Agreement and the willingness of Transcept to enter into the Collaboration, Purdue hereby agrees that, from and after during the date hereof until Standstill Period (as defined below), unless the earlier restrictions set forth in this Section 14.6 have been specifically waived in writing by Transcept, neither Purdue nor any of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notits Affiliates will in any manner, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) selleffect or seek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into cause or participate in or in any contractway advise any other person to effect or seek, option offer or other agreement with respect topropose (whether publicly or otherwise) to effect or participate in, or consent to, a Transfer of, the record (A) any acquisition of securities (or beneficial ownership or both or voting powerthereof) if, of any or all after such acquisition, Purdue and its Affiliates would beneficially own (as such term is defined in Rule 13d-3 of the Shareholder Owned Shares;
▇▇▇▇ ▇▇▇) in the aggregate [***] percent (ii[***]%) enter into any or more of the voting agreementsecurities of Transcept then outstanding on a fully diluted as converted basis, proxy, consent whether or power of attorney with respect tonot in a tender offer or exchange offer, or deposit into a voting trustany acquisition of Transcept’s assets or business; (B) any tender or exchange offer, merger or other business combination involving Transcept; provided however, for the avoidance of doubt, the Shareholder Owned Shares;
limitation in this Section 14.6 shall not preclude any such person from selling Transcept securities in a tender or exchange offer initiated by a person other than Purdue or its Affiliates, or from voting Transcept securities owned by it or them in favor of or against any such sale; (iiiC) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Transcept; provided however, this clause (C) shall not apply to any transactions contemplated by this Agreement and shall not preclude any such person from participating in any such transaction as a result of which the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic percentage interest in Transcept held by Purdue and its Affiliates would not increase from the Shareholder Owned Shares percentage held by Purdue and its Affiliates immediately prior to such transaction (other than solely as a result of a redemption or enter into any transaction that has such effect;
(v) acquireother repurchase by Transcept, offer to acquire, or agree to acquire, whether directly or indirectly, of securities outstanding in a transaction in which none of Purdue nor any of its Affiliates was directly or indirectly a sponsor), or voting Transcept securities owned by purchase it in favor of or otherwiseagainst any such transaction, any or receiving assets of the Company from Transcept upon Transcept’s liquidation (unless Purdue or any subsidiary or division thereof;
(vi) make, or in any way participate in, of its Affiliates was directly or indirectly, indirectly a sponsor of such liquidation); or (D) any “solicitation” (as soliciting party) of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementTranscept;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixii) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act▇▇▇▇ ▇▇▇) with respect to any acquisition by any such person of securities of [***] percent ([***]%) or more of the voting securities of Transcept then outstanding on a fully diluted as converted basis;
(iii) seek alone or in connection concert with others, to control or influence the management, board of directors or policies of Transcept (other than influence as part of commercial discussions in the ordinary course of business under this Agreement, any amendments hereto and/or the activities contemplated hereby);
(iv) take any action (other than to disclose the existence of this Agreement or matters arising hereunder in any Schedule 13D or 13G under the 1934 Act or in any other disclosure required by Applicable Law) which would reasonably be expected to force Transcept to make a public announcement regarding any of the foregoing;types of prohibited matters set forth in this Section 14.6; or
(xv) seekenter into any discussions or arrangements with any Third Party, which discussions or arrangements ultimately result in Purdue or its Affiliates or such Third Party taking any of the foregoing prohibited actions or participating in any way which may be reasonably likely of the foregoing prohibited matters.
(b) Purdue also agrees, during the Standstill Period, not to requirerequest Transcept (or its directors, involve officers, employees or trigger public disclosure of such request pursuant to applicable Lawagents), directly or indirectly, to have amend or waive any provision of this Section 3.1 amended14.6 (including this sentence). For purposes hereof, modified or waived;
(xi) otherwise take, directly or indirectly, any actions “Standstill [***] Confidential treatment has been requested for portions of this exhibit. These portions have been omitted from this exhibit and have been filed separately with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound Securities and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)Exchange Commission.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: License and Collaboration Agreement (Transcept Pharmaceuticals Inc)
Standstill. (a) Each of the Shareholders hereby Stockholder other than Travelers and DLJ severally covenants and agrees that, from and after the date hereof until the earlier second anniversary of the Effective Time Closing Date, it will not, and will cause its Affiliates not to, singly or as a part of a "partnership, limited partnership, syndicate or other group" (as those terms are used within the meaning of Section 13(d)(3) of the Merger and Securities Exchange Act of 1934, as amended (the termination of the Merger Agreement, such Shareholder shall not"Exchange Act")), directly or indirectly, unless (i) specifically requested by Parent through one or (ii) expressly contemplated by the terms of this Agreement more intermediaries or the Merger Agreementotherwise:
(ia) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or without the consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power Board of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any Directors of the economic interest in the Shareholder Owned Shares Buyer, voluntarily acquire or enter into any transaction that has such effect;
(v) acquireoffer, offer to acquireseek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any assets beneficial ownership (as such term is defined in regulations promulgated under the Exchange Act) of an aggregate of more than 5% of the Company or any subsidiary or division thereofoutstanding shares of Buyer Common Stock;
(vib) make, or in any way participate in, directly or indirectly, any “solicitation” (i) solicit proxies within the meaning of “proxies” (as such terms are used in Regulation 14A promulgated under the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person Act with respect to the voting ofBuyer Common Stock, any voting securities (ii) become a participant in a solicitation of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement proxies with respect toto Buyer Common Stock, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixiii) form, join or in any way participate in a “group” Group (as defined in such term is used within the meaning of Section 13(d)(3) under of the Exchange Act, which meaning shall apply for all purposes of this Agreement) which is soliciting or intends to solicit proxies with respect to Buyer Common Stock, or (iv) seek to advise, encourage or influence any person or entity with respect to the voting of any Buyer Common Stock;
(c) form, join or in connection any way participate in a Group which has acquired or plans to acquire shares of Buyer Common Stock, other than as a Group composed of such Stockholder and its Affiliates (provided that nothing herein shall prohibit a Stockholder from tendering into a tender offer);
(d) deposit any Buyer Common Stock in any voting trust or subject any Buyer Common Stock to a voting agreement or other arrangement with similar effect that could reasonably be expected to result in any of the foregoing;
(xe) seekotherwise act, alone or in concert with others (including by providing financing for another party), to seek or offer to control, in any way which may be reasonably likely to requiremanner, involve the management, Board of Directors or trigger public disclosure policies of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waivedBuyer;
(xif) otherwise takeunless and until such Stockholder has received the prior written invitation or approval of a majority of the disinterested Board of Directors of Buyer, directly or indirectly, any actions with the purpose of avoiding solicit, seek or circumventing any provision of this Section 3.1 or which could reasonably be expected offer to have the effect of preventingeffect, impeding, interfering negotiate with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Mergerprovide any information to any party, or such Shareholder’s ability make any statement or proposal to perform its obligations under this Agreement. Notwithstanding the foregoingany person with a view to forming a Group or make any public announcement or proposal or offer whatsoever, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): with respect to (i) any form of business combination or similar transaction involving the Buyer or any Subsidiary thereof, including, without limitation, a pledge merger, tender or exchange offer or liquidation of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, assets or (ii) Transfers to a family member any form of a Shareholder (restructuring, recapitalization or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests similar transaction with respect to the CompanyBuyer or any Subsidiary thereof; or
(g) investigate, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock encourage or voting interests shall, without further action assist any third party to do any of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementforegoing.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sunglass Hut International Inc)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after the date hereof until the earlier As of the Effective Time Date, other than the Shares issued pursuant to the Transaction Agreement, Investor represents that neither Investor nor any Affiliate of Investor Beneficially Owns any Company Securities.
(b) For the period beginning on the Effective Date and ending on the five-year anniversary of the Merger Effective Date (the “Standstill Period”), Investor will not, and it will cause its Affiliates and their respective Authorized Representatives (acting as an agent or on behalf of Investor or its Affiliates) not to, unless invited in writing by the termination Company Board to, propose or publicly announce or otherwise publicly disclose an intent to propose, or enter into or agree to enter into, singly or with any other Person any transaction that constitutes, or would result in, a Change of Control; provided, however, that the Merger foregoing shall not restrict Investor or any of its Affiliates from (1) making any such proposal, announcement or disclosure, or entering into, agreeing to enter into, any such transaction if invited by the Company in writing (including by e-mail), (2) making any disclosure required by applicable Law in respect of actions otherwise permitted by this Agreement, such Shareholder shall (3) submitting private proposals to the Company or (4) proposing, announcing, disclosing, entering into or agreeing to enter into a Permitted Transaction.
(c) During the Standstill Period, Investor will not, and will cause its Affiliates and their respective Authorized Representatives (acting as an agent or on behalf of Investor or its Affiliates) not to, directly or indirectly, singly or with any other Person, unless (i) specifically requested by Parent or (ii) expressly contemplated invited in writing by the terms of this Agreement or the Merger AgreementCompany Board to take such action:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, acquire Beneficial Ownership of any or all Company Securities; provided, however, that Investor and its Affiliates may acquire Beneficial Ownership of Company Securities to the extent that after giving effect to such acquisition of Company Securities, Investor would not Beneficially Own Common Shares in excess of the Shareholder Owned Ownership Cap, unless due to accretion in Beneficial Ownership of Common Shares in connection with the redemption of Preferred Shares;
(ii) enter into any voting agreementadvise, proxy, consent encourage or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to votepersuade, or seek to advise advise, encourage or influence persuade, any Person with respect to the voting of (or execution of a proxy or written consent in respect of), acquisition of, or disposition of any voting securities Company Securities;
(iii) request or demand a copy of the Company’s list of shareholders or its other books and records, whether under Section 1701.37 of the Ohio Revised Code or equivalent state or federal Laws;
(iv) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks or offers to acquire Beneficial Ownership of any Company Securities or that seeks to affect control of the Company or has the purpose of circumventing any provision of this Agreement;
(including by making v) call, seek to call, or request the call of (publicly known such Shareholder’s position on any matter presented to shareholdersor otherwise), other than to recommend that shareholders alone or in concert with others, any meeting of the Company’s shareholders, whether or not such a meeting is permitted by the Charter or Regulations, including a “town hall meeting”;
(vi) disclose publicly or privately, in a manner that would reasonably be expected to become public, any intent, purpose, plan, or proposal with respect to the Company, the Company vote in favor Board, the Company’s management, business or corporate structure, policies, affairs, or any of the Merger and the Merger Agreementits securities or assets;
(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 Company Directors or otherwise with respect to the Company or seek, facilitate or encourage the appointment, election or removal of any Company Directors;
(viii) submit, participate in, or be the proponent of, or seek, or persuade or encourage any Person, to submit, any shareholder proposal under to the Company (including any submission of shareholder proposals pursuant to Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets);
(ix) form, join or deposit any Company Securities in any way participate in a “group” voting trust or similar arrangement or subject any Company Securities to any arrangement or agreement with respect to the voting thereof (as defined in Section 13(d)(3) under including by granting any proxy, consent, or other authority to vote), other than any such trust, arrangement or agreement among the Exchange Act) in connection with any of the foregoingCompany and its Affiliates;
(x) seekotherwise act, alone or in concert with others (including by providing financing for or other assistance to another Person), to seek or to offer to control or influence, in any way which may be reasonably likely to requiremanner, involve the Company Board or trigger public disclosure of such request pursuant to applicable Lawthe Company’s management, to have any provision of this Section 3.1 amendedgovernance, modified compensation programs, policies, strategies, strategic initiatives, or waived;business or corporate structure; or
(xi) otherwise take, directly cause any Person to take any action that Investor or indirectly, any actions with the purpose of avoiding or circumventing any provision of Investor’s Affiliates and their respective Authorized Representatives is prohibited from taking pursuant to this Section 3.1 2.1. Notwithstanding anything in this Section 2.1 to the contrary, the restrictions set forth in this Section 2.1 will not (i) apply, solely to the extent necessary to facilitate a public or which could reasonably be expected private proposal or transaction by Investor or any of its Affiliates that, if consummated, would result in a Change of Control (a “Permitted Transaction”), upon the earliest to have occur of (y) the effect public announcement by the Company of preventingits entry into a definitive agreement providing for a Change of Control or (z) the public announcement by a third Person of any tender, impeding, interfering with exchange or adversely affecting other offer or proposal the consummation of which would result in a Change of Control and as to which the Company has publicly recommended for such tender, exchange or other offer or proposal (as long as Investor has not violated this Section 2.1 and such violation has not caused such public announcement) (an, “Extraordinary Transaction”), provided, however, that if any of the transactions contemplated by referred to in (y) or (z) terminates and the Merger Agreement, including Company has not made a public announcement of its intent to solicit or engage in a transaction (or has announced its decision to discontinue pursuing such a transaction the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoingconsummation of which would result in a Change of Control), the following Transfers are expressly permitted under restrictions contained in this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to Section 2.1 will again be bound and subject to the terms and provisions of this Agreementapplicable, (ii) Transfers restrict Investor or any of its Affiliates from engaging in discussions or negotiations regarding the acquisition of, or acquiring, whether by merger, consolidation or otherwise, any Person who Beneficially Owns Company Securities so long as the principal purpose of such acquisition is not to a family member of a Shareholder (or to a trust for avoid the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees restrictions set forth in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementSection 2.1, (iii) Transfers restrict Investor from enforcing or seeking to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions enforce any of its rights under this Agreement, and Agreement or (iv) Transfers restrict Investor or any of its Affiliates from (A) making any public or private statement or announcement regarding an Extraordinary Transaction, (B) making any disclosure required by applicable Law in respect of actions otherwise permitted by this Agreement or (C) submitting private proposals to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)Board.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby The Recipient agrees that, for a period of two years from and after the date hereof until of this letter agreement (the earlier “Standstill Period”), unless (and then only to the extent) the Recipient is specifically invited in writing by the Company to do so, neither the Recipient nor any of its directors, managers, officers, employees or affiliates will, and none of the Effective Time Recipient’s other Representatives (acting on behalf of or in concert with, or at the Merger and direction, encouragement or instruction of, the termination Recipient or any of the Merger Agreementits directors, such Shareholder shall notmanagers, officers, employees or affiliates) will, in any manner, directly or indirectly, unless (i) specifically requested by Parent effect, cause or participate in (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquireseek, offer to acquireor propose, or agree to acquire, directly or indirectly, by purchase whether publicly or otherwise, any assets of the Company to effect, cause or any subsidiary or division thereof;
(vi) makeparticipate in), or in any way advise, assist or knowingly encourage any other person to effect, cause or participate in (or to seek, offer or propose, whether publicly or otherwise, to effect, cause or participate in), directly (A) any acquisition of, or indirectlyany acquisition of beneficial ownership of, (x) any securities (or derivative securities referencing them or related thereto) of, or any assets of, the Company, or (y) any right to acquire any such securities or assets, (B) any tender or exchange offer, merger or other business combination involving the Company, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company (each transaction described in the foregoing clauses (A), (B) and (C), a “Business Combination”), or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Company, (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixii) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the activities set forth in clause (i) of this sentence, (iii) otherwise act, alone or in concert with others, to seek to control, influence or direct the management, board of directors or policies of the Company, or to seek to advise or influence any person with respect to the voting of any voting securities of the Company, (iv) negotiate with, provide any information to or enter into any discussions or arrangements with any person (other than Representatives of the Recipient in accordance with this letter agreement) with respect to, or make any proposal or similar statement to any person (other than Representatives of the Recipient in accordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or disclose any intention, plan or arrangement with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect, any transactions or actions described in clauses (i), (iii) or (iii) above, (v) take any action that could reasonably be expected to require (under applicable Law or in connection with fiduciary obligations) the Company or its board of directors to make a public announcement or other public disclosure regarding any of the foregoing;
types of transactions or actions described in clause (xi) seekabove, in or (vi) request the Company (or any way which may be reasonably likely to requireof its directors, involve officers, employees or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeagents), directly or indirectly, any actions with the purpose of avoiding to amend or circumventing waive any provision of this Section 3.1 or which paragraph (including this sentence); provided, however, that nothing in this paragraph shall prohibit the Recipient from making a confidential proposal to the Company’s Chief Executive Officer for a Business Combination in a manner that is not intended to, and could not reasonably be expected to have the effect of preventingto, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to require the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order board of directors to make any public disclosure with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Sharesthereto.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each Party hereby acknowledges that the Evaluation Material is being furnished to it in consideration of the Shareholders hereby agrees that, its agreement that for a period of 1.5 years from and after the date hereof until the earlier of the Effective Time of the Merger such Party will not (and the termination of the Merger Agreementsuch Party will not assist, such Shareholder shall notprovide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of Directors of the other Party: (i) specifically requested by Parent acquire or agree, offer, seek or propose to acquire (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”request permission to do so), or enter into any contractownership (including, option or other agreement with respect but not limited to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest as defined in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 13d-3 under the Exchange Act;
) of any of the assets or businesses of the other Party or any securities issued by the other Party, or any rights or options to acquire such ownership (viiiincluding from a third party), or make any public announcement (or request permission to make any such announcement) with respect to any of the foregoing; (ii) seek or propose to influence or control the management or the policies of the other Party or to obtain representation on the Board of Directors of the other Party, or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities of the other Party, or make any public announcement with respect to any of the foregoing or request permission to do any of the foregoing; (iii) take any action which might require the other Party to make a public announcement regarding the types of matters set forth in (i) and (ii) above in this sentence; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing; or (v) seek to have the other Party amend or waive any provision of this Section; provided that the foregoing shall not prohibit any Sears employee pension fund or trust (a "Sears Fund") from acquiring any equity securities of the Company so long as (x) such acquisition is in the ordinary course of business and consistent with past practice of such fund or trust and not with the intention of obtaining or exercising control over the Company, (y) such fund or trust does not directly or indirectly beneficially own (including, but not limited to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (beneficial ownership as defined in Section 13(d)(3) Rule 13d-3 under the Exchange Act) in connection with 5 or more percent of any equity security of any class of the foregoing;
Company and (xz) seek, such acquisition does not cause or in any way which may result in any obligation or requirement of either Party to make any disclosure contemplated to be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of prohibited by this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Mergerpursuant to section 2(c), without taking into account any exception for disclosure required by law or such Shareholder’s ability to perform its obligations under this Agreementby any applicable stock exchange rules and regulations. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory Each Party represents to the Parent to be bound and subject to the terms and provisions other Party that neither it nor any of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer its affiliates (other than a Permitted Transfer described in clause the case of Sears any Sears fund) owns (ivincluding, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any securities issued by the other Party as of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. ▇▇▇▇ agrees that for a period of three (a3) Each years from the Retirement Date, neither ▇▇▇▇ nor any of his affiliates or persons or entities acting at his direction will, unless specifically invited in writing by the Board of Directors of the Shareholders hereby agrees thatCompany, from and after the date hereof until the earlier acting by resolution approved by a majority of all members of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notBoard, directly or indirectly, unless in any manner (i) specifically requested by Parent or (ii) expressly contemplated by the terms of obligations pursuant to this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer ofSection 8 being, the record “Standstill”):
A. except for stock acquired pursuant to the Restricted Stock, Restricted Stock Units or beneficial ownership exercise of Options or both or voting power, trading of any or all Company stock as part of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power routine managing of attorney with respect to, or deposit into personal investments for ▇▇▇▇ and his family that are not directed at obtaining a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic controlling interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) Company, 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 purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any assets direct or indirect beneficial interest in any 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 or any subsidiary or division thereofof its subsidiaries;
(vi) B. make, or 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 Section 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 of its subsidiaries; provided, however, that this paragraph and this Section 8 shall not be construed to prevent ▇▇▇▇ from voting shares of Company stock that he controls; C. initiate, propose or “proxiessolicit” (as such terms are term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities stockholders of the Company (including by making publicly known such Shareholder’s position on or any matter presented of its subsidiaries for the approval of stockholder proposals whether made pursuant to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 or Rule 14a-4 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal forotherwise, or offer of (cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; otherwise communicate with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assetsits subsidiaries’ stockholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act in connection with the solicitation of proxies or consents or matters presented to the Company’s or its subsidiaries’ stockholders;
(ix) D. form, join or in any way participate in a “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) in connection Act with respect to any voting securities of the foregoingCompany or its subsidiaries;
(x) seekE. acquire, in any way which may be reasonably likely offer to require, involve acquire or trigger public disclosure of such request pursuant agree to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeacquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) all or substantially all of the assets, tangible and intangible, of the Company or any actions of is subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its subsidiaries;
F. except in connection with exercising ▇▇▇▇’▇ stock options or trading of Company stock as part of the routine managing of personal investments for ▇▇▇▇ and his family that are not directed at obtaining a controlling interest in the Company, 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; G. otherwise act, alone or in concert with others, to seek to propose to the Company or any of its subsidiaries 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 of its subsidiaries; H. 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 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 of Directors of the Company or the removal of any member of the Board of Directors of the Company, or propose any matter to be voted upon by the stockholders of the Company or any of its subsidiaries;
I. make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the purpose of avoiding foregoing, or circumventing make or disclose any request or proposal to amend, waive or terminate any provision of this Section 3.1 Standstill or which could reasonably be expected seek permission to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under make any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order public announcement with respect to all any provision of its Shareholder Owned Shares and that this Agreement places limits on the voting Standstill; or
J. announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of its Shareholder Owned Shares.
(c) Prior to the termination actions restricted or prohibited under clauses A through I of this Agreement in accordance with its termsStandstill, or take any action that might result in the event that Company having to make a Shareholder acquires record or beneficial ownership ofpublic announcement regarding any of the matters referred to in clauses A through I of this Standstill, or the power otherwise intentionally take, or solicit, or cause or encourage others to vote or direct the voting oftake, any additional shares of Company Common Stock or other voting interests action inconsistent with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementforegoing.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each The MJNA Parties agree, on behalf of themselves and their respective affiliates and associates (as defined in Rule 12b-2 promulgated pursuant to the Shareholders hereby agrees thatSecurities Exchange Act of 1934, from as amended (the “Exchange Act”)), that they will not (and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notthey will not assist or encourage others to), directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by in any manner, without prior written approval of the terms Board of this Agreement or the Merger AgreementDirectors of CannaVest:
(i) sellmake, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeengage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (as such terms are used in the proxy rules of the Securities and Exchange CommissionCommission promulgated pursuant to Section 14 of the Exchange Act) to vote, or seek to advise advise, encourage, or influence in any Person manner whatsoever any person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementCannaVest;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixii) form, join join, encourage, influence, advise or in any way participate in a “group” (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act (other than a group involving solely the MJNA Parties) with respect to any securities of CannaVest (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the MJNA Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement) or otherwise in any manner agree, attempt, seek or propose to deposit any securities of CannaVest in any voting trust or similar arrangement, or subject any securities of CannaVest to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) 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 loans, debt securities, equity securities or assets, tangible and intangible, of CannaVest or (b) direct or indirect rights, warrants or options to acquire any of the foregoing;
(iv) otherwise act, alone or in concert with others, to seek to offer to CannaVest or any of its stockholders any merger, tender offer, exchange offer, business combination, restructuring, recapitalization, liquidation or any transaction similar thereto with or involving CannaVest or any of its subsidiaries or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of CannaVest or nominate any person as a director of CannaVest who is not nominated by the then incumbent directors (provided that if there is a vacancy on the CannaVest Board of Directors, and any MJNA Party continues to own the Stock or any other common stock of CannaVest, the MJNA Parties may submit suggestions on a confidential basis to the CannaVest Board of Directors or nominees to the Board of Directors), or propose any matter to be voted upon by the stockholders of CannaVest;
(v) seek the removal of any member of the Board, conduct a referendum of stockholders or make a request for any stockholder list or other CannaVest books and records;
(vi) take any action in support of or make any proposal or request that constitutes: (a) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of CannaVest; (b) seeking to have CannaVest waive or make amendments or modifications to CannaVest’s Certificate of Incorporation or Bylaws, or other actions, that may impede or facilitate the acquisition of control of CannaVest by any person; (c) causing a class of securities of CannaVest to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (d) causing a class of securities of CannaVest to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) in connection enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement or proposal with respect to, or seek to effect any of the foregoing, or otherwise take or cause any action or make any statement, proposal, public announcement or offer inconsistent with any of the foregoing;
(xviii) seekpropose a director or slate of directors in opposition to a nominee or slate of nominees proposed by the management or Board of Directors of CannaVest;
(ix) enter into or seek or propose to enter into any agreement with CannaVest that substantially limits the discretion of CannaVest’s management over major policies and decisions, including, but not limited to, policies or decisions about employing and compensating executive officers; engaging in new business lines; raising additional debt or equity capital; merging or consolidating with another firm; or acquiring, selling, leasing, transferring, or disposing of material assets, subsidiaries, or other entities, provided however, discussions with a member of the Board of Directors in connection with a proposal to enter into any way which may agreement in an effort to seek Board of Director approval shall not be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision deemed a violation of this Section 3.1 amended, modified or waived;1(a)(ix); and
(xix) otherwise takeannounce an intention to do, directly or indirectlyenter into any arrangement or understanding with others to do, or propose or seek to effect any of the actions with the purpose of avoiding restricted or circumventing any provision prohibited under clauses (i) through (ix) of this Section 3.1 1, or which could reasonably publicly announce or disclose any request to be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation excused from any of the transactions contemplated foregoing obligations of this Section 1. Nothing in this Agreement shall prevent the MJNA Parties from selling or disposing of the Stock, in whole or in part, in one transaction or series of transactions, to third parties who are not Affiliates, whether by private sale(s) or open market transaction(s), and such third parties shall not be governed by this Agreement so long as none of the MJNA Parties retain any legal or beneficial ownership or voting rights of such Stock.
(b) At any CannaVest annual meeting of stockholders during the Standstill Period, the MJNA Parties agree (1) to vote all shares of the Stock they or any of them legally or beneficially own in favor of the nominees for election or reelection as director of CannaVest selected by the Merger AgreementBoard of Directors of CannaVest and agree otherwise to support such director candidates, including and (2) with respect to any other proposal submitted by any CannaVest stockholder to a vote of the MergerCannaVest stockholders, to vote all of the Stock they legally or beneficially own in accordance with the recommendation of the CannaVest Board of Directors with respect to any such Shareholder’s ability to perform its obligations under this Agreementstockholder proposal. Notwithstanding the foregoing, the following Transfers MJNA Parties shall have no obligation to vote the shares of Stock they or any of them legally or beneficially own in favor of any recommendation of the CannaVest Board of Directors, and are expressly permitted under this Agreement (each such Transferfree to vote the shares of Stock they or any of them legally or beneficially own either for or against any recommendation of the Board of Directors of CannaVest, a "Permitted Transfer"): that specifically relates to any of (i) a pledge the sale or other conveyance of Shareholder Owned Shares required under any credit facility in existence on all or substantially all of the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions assets of this AgreementCannaVest, (ii) Transfers to a family member the acquisition of a Shareholder (CannaVest by another entity by means of any transaction or to a trust for the benefit series of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound related transactions, and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if any go-private transaction or similar transaction that would cause the transferee agrees in writing reasonably satisfactory to the Parent common stock of CannaVest to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)de-listed.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby agrees that, from and after From the date hereof of this Agreement until the Expiration Date or until such earlier of time as the Effective Time of restrictions in this paragraph 13 terminate as provided herein (such period, the Merger “Restricted Period”), 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 termination of the Merger Agreement, such Shareholder shall not“Restricted Persons”) not to, directly or indirectly, unless (i) specifically requested by Parent absent prior express written invitation or (ii) expressly contemplated authorization by the terms of this Agreement or the Merger AgreementBoard:
(ia) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign engage in any “solicitation” (as such term is defined under the Exchange Act) of proxies or otherwise dispose consents with respect to the election or removal of (whether by merger, operation of Law directors or otherwise) (collectively, any other matter or proposal or become a “Transfer”), participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Sharesconsents;
(iib) enter into knowingly encourage, advise or influence any voting agreementother Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the giving or withholding of any proxy, consent or power other authority to vote or in conducting any type of attorney referendum, binding or non-binding, (other than such encouragement, advice or influence that is consistent with respect to, or deposit into a voting trust, the Shareholder Owned SharesCompany management’s recommendation in connection with such matter);
(iiic) enter into form, join or act in concert with any short sale partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act with respect to any Voting Securities, other than solely with other Affiliates of the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract Investors with respect to the Shareholder Owned Shares Voting Securities now or substantially identical propertyhereafter owned by them;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(vd) acquire, offer to acquireor offer, seek or agree to acquire, directly or indirectly, by purchase or otherwise, or direct any assets Third Party in the acquisition of, any Voting Securities of the Company, or rights or options to acquire any Voting Securities of the Company if such acquisition would result in the Investors having beneficial ownership of more than 4.99% of the Company’s outstanding common stock;
(e) make or in any way participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any subsidiary of its subsidiaries or division thereof;
its or their securities or assets (vieach, an “Extraordinary Transaction”) make(it being understood that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any way participate insuch transaction that has been approved by the Board); or make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used proposal, either alone or in concert with others, to the rules 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;
(f) enter into a voting trust, arrangement or agreement or subject any Voting Securities and Exchange Commission) to voteany voting trust, arrangement or seek to advise or influence any Person 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 voting Board;
(g) (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 voting 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; or (iii) conduct a referendum of stockholders;
(h) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(i) make any request for stock list materials or other 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;
(j) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to the Company’s Certificate of Incorporation or Bylaws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders vi) causing a class of equity securities of the Company vote in favor to become eligible for termination of the Merger and the Merger Agreement;
(viiregistration pursuant to Section 12(g)(4) submit to the Company any shareholder proposal under Rule 14a-8 under of the Exchange Act;
(viiik) make institute, solicit, assist or join any public announcement with respect tolitigation, arbitration or submit a proposal for, other proceeding against or offer involving the Company or any of its current or former directors or officers (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Actincluding derivative actions) in connection with order to effect or take any of the foregoing;
actions expressly prohibited by this paragraph 13; provided, however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (xA) seek, in any way which may be reasonably likely bringing litigation to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with enforce the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in the correspondence between the Company and the Restricted Persons prior to the date hereof, or (D) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(l) enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investors are prohibited from taking pursuant to this paragraph 13; or
(m) make any request or submit any proposal, directly or indirectly, to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal; provided, that (A) the restrictions in this paragraph 13 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Investor Designee or New Directors and otherwise constitute the Board in accordance with paragraph 1, a failure to form the Financial Policy Committee in accordance with paragraph 2, a failure to appoint a replacement in accordance with paragraph 6, or a failure to issue the Company Press Release in accordance with paragraph 12) , upon five (5) business days’ prior written notice by the Investors following any such material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that the Investors are not in material breach of this Agreement at the time such notice is given, (ii) Transfers to a family member of a Shareholder (or to a trust such time as the Company files its definitive proxy statement with the SEC for the benefit of a family member) 2017 Annual Meeting or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to 2018 Annual Meeting that does not comply with the terms and provisions of this Agreement, (iii) Transfers the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, (iv) the commencement of any tender or exchange offer (by a third party person other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the transferee agrees in writing reasonably satisfactory acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer or (v) the adoption by the Board of any amendment to the Parent Charter or Bylaws of the Company that would reasonably be expected to be bound impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting of Stockholders, and (B) nothing contained in this paragraph 13 shall prevent the Investors from making (i) any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, and nothing in this Agreement shall prevent the Company from responding to such statements, subject to the terms and provisions obligations of the parties under paragraph 14 or (ii) any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of discretionary acts by the Investors or any of their Affiliates). Notwithstanding anything to the contrary in this Agreement, and (iv) Transfers to nothing in this paragraph 13 shall prohibit or restrict the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options Investor Designee or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) either of the immediately preceding sentence), including in connection with New Directors from exercising his or her rights and fiduciary duties as a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty director of the Company or restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or any member thereof or which otherwise challenges agents of the Merger AgreementCompany.
Appears in 1 contract
Sources: Director Appointment Agreement (Cognizant Technology Solutions Corp)
Standstill. ▇▇▇▇▇▇ agrees that beginning on the date of this Agreement and continuing for twenty-four (a24) Each of the Shareholders hereby agrees that, from and months after the date hereof until on which the earlier parties terminate discussions concerning a potential transaction (the “Standstill Period”), neither Bidder nor any of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notits affiliates or representatives will in any manner, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated invited in writing by the terms Client’s Board of this Agreement or the Merger AgreementDirectors:
(ia) selloffer, transferseek, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign effect or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into any contract, option cause or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeparticipate in, or in any way assist any other person to offer, seek, effect or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of beneficial ownership of any securities issued by Client or its affiliates or any of Client’s or its affiliates’ assets; (ii) any tender or exchange offer, directly merger or indirectlyother business combination involving Client or its affiliates; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar transaction with respect to Client or its affiliates; or (iv) any “solicitation” of “proxies” (as such those terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting ofrefrain from voting, any voting securities issued by Client or to solicit any consents of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders stockholders of the Company vote in favor of the Merger and the Merger AgreementClient or its affiliates;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “group” (as defined in Section 13(d)(3the Securities Exchange Act of 1934, as amended) under with respect to any securities issued by Client or its affiliates, or otherwise seek, alone or together with other persons, to control or influence the Exchange Actmanagement, Board of Directors or policies of Client or its affiliates;
(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving Client or its securities or assets;
(d) take any action that could require Client or its affiliates to make a public announcement regarding any of the types of transactions or matters set forth in connection paragraph (a);
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses (a), (b), (c), or (d);
(f) assist, advise, induce or encourage any other person to take any action of the type referred to in clauses (a), (b), (c), (d), or (e); or
(g) enter into any discussion or arrangements with any third party with respect to any of the foregoing;
. ▇▇▇▇▇▇ also agrees during the Standstill Period not to request Client (x) seekor its directors, in any way which may be reasonably likely to requireofficers, involve employees or trigger public disclosure of such request pursuant to applicable Lawagents), directly or indirectly, to have amend or waive any provision of this Section 3.1 amended, modified or waived;
8 (xi) including this sentence). Bidder further agrees that unless otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated directed by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Client in writing (i) all communications with Client regarding a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementPossible Transaction, (ii) Transfers requests for additional information, facility tours, or management meetings, and(iii) discussions or questions regarding procedures with respect toa Possible Transaction, will be submitted or directed by Bidder or its representatives only to FOCUS Investment Banking LLC (“FOCUS”), as Client’s financial advisor, or a family member of a Shareholder (person or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees persons designated in writing reasonably satisfactory to the Parent to be bound and subject to the terms and by FOCUS. The provisions of this Agreement, (iii) Transfers to Section 8 shall terminate upon the public announcement by Client that it has entered into a third party if definitive agreement providing for the transferee agrees in writing reasonably satisfactory to Possible Transaction with any person or persons. The expiration of this Section 8 shall not terminate or otherwise affect any of the Parent to be bound and subject to the terms and other provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)letter agreement.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each During the Standstill Period, any Holder that together with its Affiliates owns 25% or more of the Shareholders hereby agrees that, from issued and after the date hereof until the earlier outstanding shares of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder Common Stock shall not, :
i. directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign purchase or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree propose or offer to purchase or otherwise acquire, directly or indirectlyany Equity Securities whether by tender offer, by purchase market purchase, privately negotiated purchase, Business Combination or otherwise, any assets if, immediately after such purchase or acquisition, the Holder Interest of such Holder would equal or exceed the Initial Percentage;
ii. directly or indirectly propose to the Company or any subsidiary or division thereofPerson a Business Combination;
(vi) iii. make, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of “"proxies” " to vote (as such terms are used in the rules promulgated by the Commission under Section 14(a) of the Securities and Exchange CommissionAct) to vote, or seek to advise advise, encourage or influence any Person person or entity with respect to the voting ofof any shares of capital stock of the Company, any voting securities initiate, propose or otherwise solicit stockholders of the Company (including by making publicly known such Shareholder’s position on for the approval of one or more stockholder proposals or induce or attempt to induce any matter presented other Person to shareholders), other than initiate any stockholder proposal; or
iv. deposit any Equity Securities into a voting trust or subject any Equity Securities to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit any arrangement or agreement with respect to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer voting of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s such securities or assets;
(ix) form, join or in any way participate in a “"group” " (as defined in within the meaning of Section 13(d)(3) under of the Exchange Act) with respect to any Equity Securities, other than as expressly set forth in connection with any Section 7 hereof. Nothing in this Section 8 shall limit the ability of PGGM Directors to function in their capacities as members of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision Board. The provisions of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably 8 may be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated waived by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or only upon the approval of a majority of the Merger Agreement Board, excluding all PGGM Directors and shall not be applicable to actions approved by the Company majority of the Board, breaches any fiduciary duty excluding all PGGM Directors in circumstances in which the PGGM Directors are "interested directors" under Section 78.140 of the Company Board or any member thereof or which otherwise challenges the Merger AgreementNevada General Corporation Law.
Appears in 1 contract
Sources: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Standstill. (a) Each Recipient’s Beneficial Ownership of the Shareholders hereby Provider’s capital stock as of the Effective Date is set forth on Schedule A attached hereto. Recipient agrees that, from and for a period of one year after the date hereof until of this Agreement (the earlier “Standstill Period”), unless specifically invited in writing by Provider, neither it nor any of the Effective Time of the Merger and the termination of the Merger Agreementits affiliates who have been provided Evaluation Material, such Shareholder shall notwill in any manner, directly or indirectly:
(a) effect, unless seek, offer or propose (iwhether publicly or otherwise) specifically requested by Parent to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (iiwhether publicly or otherwise) expressly contemplated by the terms of this Agreement to effect or the Merger Agreementparticipate in:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose any acquisition of any equity securities (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership thereof) or both all or voting power, of any or substantially all of the Shareholder Owned Shares;assets of Provider or any of its subsidiaries,
(ii) enter into any voting agreementtender or exchange offer, proxy, consent merger or power other business combination involving Provider or any of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;its subsidiaries,
(iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock Provider or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;any of its subsidiaries, or
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementProvider;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act▇▇▇▇ ▇▇▇) with respect to the securities of Provider;
(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving Provider or its equity securities or assets;
(d) otherwise act, alone or in connection concert with others, to seek to control or influence the management, Board of Directors or policies of Provider;
(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in (a) above; or
(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;
. Recipient also agrees during the Standstill Period not to publicly request (x) seek, or request in any way which may be a manner or under circumstances that would reasonably likely to require, involve or trigger require public disclosure of such request pursuant to applicable Lawrequest) Provider (or its directors, officers, employees or agents), directly or indirectly, to have amend or waive any provision of this Section 3.1 amended, modified or waived;
9 (xi) including this sentence). Recipient further agrees that unless otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated directed by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Provider in writing (i) all communications with the Provider regarding a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementPossible Transaction, (ii) Transfers to a family member of a Shareholder (requests for additional information, facility tours, or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound management meetings, and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options discussions or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order questions regarding procedures with respect to all a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to ▇▇▇▇▇ ▇▇▇▇▇ of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its termsCitigroup Global Markets Inc., in the event that a Shareholder acquires record or beneficial ownership ofas Provider’s financial advisor, or the power a person or persons designated in writing by ▇▇. ▇▇▇▇▇, unless otherwise agreed to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger AgreementProvider.
Appears in 1 contract
Sources: Nondisclosure and Standstill Agreement (Athlaction Merger Sub, Inc.)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of Except as otherwise provided in this Agreement or the Merger Agreement:
Certificate of Designations, until the later of (a) one (1) year after the Closing and (b) the date the Purchaser is no longer entitled, or waives its right, to designate one director to the Board of Directors pursuant to Section 4.1, without the prior written consent of the Company, the Purchaser will not at any time, nor will it cause any of its Affiliates to: (i) selleffect or seek, transferoffer or publicly propose to effect, tenderor publicly announce any intention to effect or cause or participate in or in any way assist, pledgefacilitate or encourage any other person to effect or seek, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) to effect or participate in, (collectively, a “Transfer”A) any acquisition or series of acquisitions of any equity securities (or beneficial ownership thereof) or rights or options to acquire any equity securities (or beneficial ownership thereof), or enter any securities convertible into or exchangeable for any contract, option or other agreement with respect to, or consent to, a Transfer of, the record such equity securities (or beneficial ownership or both or voting power, of any or all thereof) of the Shareholder Owned Shares;
(ii) enter into any voting agreementCompany, proxysuch that, consent or power after giving effect to such acquisition(s), Purchaser and its Affiliates would increase their beneficial ownership of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to by more than five percent (5%) in the Shareholder Owned Shares or substantially identical property;
aggregate within any twelve month period; provided, this clause (ivA) transfer any shall not restrict (I) the conversion of the economic interest in Purchased Notes or the Shareholder Owned Shares shares of Series A Preferred Stock (or enter into any transaction that has such effect;
dividends received thereunder) or the receipt of dividends upon shares of Series A Preferred Stock or (vII) acquireany exercise of the Purchaser’s rights to acquire New Securities pursuant to Article VI or (B) any tender or exchange offer, offer to acquire, merger or agree to acquire, directly other business combination involving the Company or indirectly, by purchase its Subsidiaries or otherwise, any assets of the Company or any subsidiary or division thereof;
its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (viii) make, participate in or in any way participate in, directly or indirectly, encourage any “solicitation” (as such term is used in the proxy rules of SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (iii) become a “proxiesparticipant” (as such terms are term is used in the proxy rules of the Securities and Exchange CommissionSEC) to vote, in any such solicitation of proxies or consents; (iv) seek to advise advise, encourage or influence any Person with respect to the voting of, or disposition of any voting of the securities of the Company Company; (including by making publicly known such Shareholder’s position on any matter presented to shareholders)v) initiate, other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, encourage or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeparticipate, directly or indirectly, in any actions with “vote no,” “withhold” or similar campaign; (vi) otherwise act to seek representation on or to control or influence the purpose management or policies of avoiding the Company or circumventing to obtain representation on the Board of Directors of the Company (beyond their right to do so based on their representation on the Board of Directors pursuant to Section 4.1); (vii) publicly submit any provision shareholder proposal to the Company; or (viii) publicly propose any change of control or other material transaction involving the Company. Nothing in this Section 3.1 4.4 shall (v) restrict or prohibit a Series A Director or Purchaser Nominee, as applicable, from taking any action, or refraining from taking any action, which could he or she determines, in his or her reasonable discretion, is necessary or appropriate in light of his or her fiduciary duties as a member of the Board of Directors, (w) restrict or prohibit the making or submission to the Company and/or the Board of Directors any proposal by the Purchaser Parties that would not reasonably be expected to have result in the effect of preventingCompany being obligated to publicly disclose such proposal, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) restrict or prohibit participation in rights offerings made by the Shareholder retains voting control Company to all holders of the Shareholder Owned Shares so Transferred Common Stock or Series A Preferred Stock, (y) such transferee agrees in writing reasonably satisfactory to restrict or prohibit the Parent to be bound and subject to the terms and provisions of this AgreementPurchaser’s acquisition, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementdisposition, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options sale or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentenceCommon Stock or Purchased Notes (or shares of Series A Preferred Stock issued upon exchange thereof (or Conversion Shares issued upon conversion thereof)) (including the accretion of dividends thereon and any dividends payable in any other security), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b))each case, such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
Agreement and the Certificate of Designations or (dz) Prior limit or restrict any Transfer pursuant to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board a Permitted Loan or any member thereof foreclosure thereunder or which otherwise challenges the Merger AgreementTransfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Standstill. (a) Each For a period of six (6) years from the Closing (the “Standstill Period”), the Investor shall not, and the Investor shall ensure that none of its Affiliates shall, nor shall any of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notforegoing Persons act in concert with any other Person to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by without the terms prior consent of this Agreement or a majority of the Merger AgreementCompany Nominated Directors who are Independent Directors:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign acquire or otherwise dispose of agree to acquire (whether by mergerpurchase, operation tender or exchange offer, through acquisition of Law control of another Person, by joining a 13D Group, through the use of a derivative instrument or voting agreement, or otherwise) ), Beneficial Ownership of any Equity Securities, or any Economic Right or Voting Right to or regarding any Equity Securities, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor and its Affiliates (collectivelyincluding, without limitation, any 13D Group of which any Investor or any Affiliate thereof is a “Transfer”member), or enter into any contract, option or other agreement with respect toto which the Investor, its Affiliates or consent toany such 13D Group would have Economic Rights or Voting Rights, would exceed the Standstill Limit (it being understood that in the event that there shall be more than one (1) Investor, all shares Beneficially Owned and all Economic Rights and Voting Rights held by all Investors and all other Persons that are participants in any 13D Group of which any Investor is a Transfer ofmember shall be aggregated, the record or beneficial ownership or both or voting powerand deemed Beneficially Owned and held by each Investor, for purposes of any or all of the Shareholder Owned Sharesthis Section 3.2(a)(i));
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iiiA) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, make or in any way participate in, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules and regulations of the Securities and Exchange CommissionSEC) with respect to voteany Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of, of any voting securities Voting Stock (other than (x) the Investor or any Affiliate or (y) in accordance with and consistent with the recommendation of the Company Board);
(including by making publicly known such Shareholder’s position on iii) deposit any matter presented Voting Stock or Series B Shares in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock or Series B Shares to shareholders), any arrangement or agreement with any Person (other than between the Investor and any of its First Tier Affiliates) with respect to recommend that shareholders the voting of such Voting Stock or Series B Shares;
(iv) join a 13D Group (other than a group comprising solely of the Company vote Investor and its Permitted Transferees) or other group, or otherwise act in favor concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock, Series B Shares or Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change of Control or any acquisition of Equity Securities in excess of the Merger and Standstill Limit;
(vi) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the Merger Agreement;management, Board or policies of the Company; or
(vii) submit to the Company otherwise take any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, action that would or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have compel the effect of preventing, impeding, interfering with or adversely affecting Company to make a public announcement (including any disclosure required to be made in any SEC filing under the consummation rules and regulations of the transactions contemplated by SEC) regarding any of the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under matters set forth in this AgreementSection 3.2(a). Notwithstanding the foregoing, the following Transfers are expressly permitted restrictions contained in this Section 3.2(a) shall not (A) apply with respect to the election of the Series B Directors by Investor and its Permitted Transferees in accordance with the Certificate of Designation, (B) prevent, restrict, encumber or in any way limit the ability of any Series B Director to vote on matters, make non-public statements to officers, employees, agents, management or other Directors or to take any action or make any statement at any meeting of the Board or any committee or subcommittee thereof in his or her capacity as a Director, (C) apply to or restrict any non-public discussions or other non-public communications between or among directors, members, officers, employees or agents of the Investor or any First Tier Affiliate of the Investor, or (D) restrict any disclosure or statements required to be made by any Series B Director or the Investor under applicable law.
(b) If during the Standstill Period the Investor is entitled (as a result of dilution due to future share issuances by the Company) to purchase shares of Common Stock (up to the Standstill Limit) in compliance with this Agreement Section 3.2, then unless the Board otherwise approves such purchases shall be made in full compliance with all applicable securities laws, but shall not be made by means of any tender offer.
(each such Transferc) The restrictions set forth in Section 3.2(a) shall terminate if, a "Permitted Transfer"): at any time during the Standstill Period, (i) the Company publicly announces its entry into a pledge definitive agreement, the consummation of Shareholder Owned Shares required under any credit facility which would result in existence on a Change of Control, and such agreement has not been approved by a majority of the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementSeries B Directors, (ii) Transfers the Company shall have waived the terms of its Rights Agreement to permit any Person (other than the Investor or any 13D Group of which the Investor is a family member of a Shareholder (or to a trust for the benefit of a family member) to effect a Change of Control or otherwise acquire more than fifteen percent (15%) of the outstanding Common Stock, and such transaction has not been approved by a majority of the Series B Directors, or (iii) any Person (other than the Investor or any Affiliate of the Investor or any 13D Group of which the Investor or any Affiliate of the Investor is a member) shall have commenced a bona fide public tender or exchange offer which if consummated would result in a Change of Control, unless the Board recommends against such tender or exchange offer within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 under the Exchange Act) thereof and thereafter continues to a charitable organization if oppose such tender or exchange offer. If (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or restrictions set forth in Section 3.2(a) shall have terminated as provided in this Section 3.2(c), and (y) such transferee agrees any definitive agreement described in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementclause (i) above, or transaction described in clause (ii) above, or tender or exchange offer described in clause (iii) Transfers above, as the case may be, shall have been terminated or abandoned prior to consummation thereof, and (z) any alternative offer or proposal by Investor in response to any such agreement, transaction, tender offer or exchange offer shall also have been abandoned or withdrawn prior to consummation thereof, then the restrictions set forth in Section 3.2(a) shall be reinstated.
(d) If during the Standstill Period the Board elects to commence a process intended to lead to a proposal with respect to Change of Control of the Company (whether in response to a proposal from a third party or otherwise), the Company will notify the Investor of the Board’s election and will permit the Investor to participate in such process as a potential bidder, if the transferee agrees Investor so elects, on the same terms and conditions as third party participants. As a condition to the Investor’s participation in such process, the Board may require that the Investor agree in writing reasonably satisfactory with the Company that if such process results in the Board’s approval of a Change of Control transaction with a Person other than the Investor that is a Superior Proposal as compared to any bona fide written proposal from the Investor, then the Investor will consent to such transaction, will raise no objection to the Parent to be bound and subject to the terms and provisions of this Agreementconsummation thereof, and (iv) Transfers to will tender shares of Equity Securities Beneficially Owned by it, as applicable, upon the Company in consummation of such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grantstransaction. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or transaction requires the approval of the Merger Agreement Company’s stockholders, the Investor agrees, if the matter is brought to a vote at a stockholder meeting, that the Investor will be present, in person or by proxy, as holders of Voting Stock, at all such meetings and be counted for determining the presence of a quorum at such meetings and will vote for the approval of any such transaction approved and recommended by the Company Board. So long as the Board continues to recommend such transaction, breaches the Investor agrees to vote and to use reasonable efforts to cause its Affiliates, as the case may be, to vote all shares of Voting Stock Beneficially Owned by the Investor and its Affiliates in favor of such transaction and for the approval of the terms thereof and in opposition to any fiduciary duty and all other proposals that are intended, or could reasonably be expected to delay, prevent, impair, interfere with, postpone or adversely affect the ability of the Company Board or any member thereof or which otherwise challenges to consummate the Merger Agreementproposals that are approved and recommended by the Board.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby Sellers agrees that, for a period of three years from and after the date hereof until the earlier of the Effective Time Initial Closing, unless specifically invited in writing by the Buyer, neither any Seller any of the Merger their respective affiliates (including Perry Corp. and the termination of the Merger Agreement▇▇▇▇▇▇▇ ▇▇▇▇▇), such Shareholder shall notor their respective officers, employees, directors or partners, will in any manner, directly or indirectly, unless (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) specifically requested by Parent any direct or indirect acquisition of any securities (or beneficial ownership thereof) or assets of the Buyer or any of its affiliates, other than the acquisition of up to an aggregate of two percent (2%) of the outstanding common shares of the Buyer solely for passive investment purposes; (ii) expressly contemplated by the terms of this Agreement any tender or the Merger Agreement:
(i) sellexchange offer, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option merger or other agreement with respect to, business combination involving the Buyer or consent to, a Transfer of, the record or beneficial ownership or both or voting power, any of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
its affiliates; (iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or any other extraordinary transaction with respect to the Common Stock Buyer or substantially identical property any of its affiliates; or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Buyer or any of its affiliates; (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “group” with respect to the Buyer or any of its affiliates; (as defined c) take any action that might force the Buyer or any of its affiliates to make a public announcement regarding any of the types of matters set forth in Section 13(d)(3(a) under the Exchange Actabove; or (d) in connection enter into any discussions or arrangements with any person with respect to any of the foregoing;
(x) seek, provided that the forgoing shall not prevent the Sellers from tendering their shares or otherwise participating in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have extraordinary transaction proposed by any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)Sellers.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal American Corp.)
Standstill. a. Each Purchaser who Beneficially Owns Warrants, Series A Preferred Stock or Conversion Shares (a) Each of the Shareholders hereby each an “Equity Holder”), agrees that, from and after the date hereof until the earlier Standstill Termination Date, without the prior consent of the Effective Time Board of the Merger and the termination of the Merger AgreementDirectors (excluding any Board Designees), such Shareholder Equity Holder shall notnot and such Equity Holder shall cause each of its Affiliates not to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
i. acquire or Beneficially Own Voting Stock or authorize or make any offer to acquire Voting Stock, if the effect of such acquisition or offer (iif consummated) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose would be to increase the percentage of the Voting Stock represented by all shares of Voting Stock Beneficially Owned by Purchaser and its Affiliates to more than 30% of the sum of (whether by mergera) the Voting Stock outstanding, operation plus (b) the number of Law or otherwise) (collectively, shares of Common Stock issuable upon a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all net exercise of the Shareholder Owned SharesWarrants or conversion of Series A Preferred Stock;
(ii) enter into . authorize, commence, encourage, support or endorse any voting agreement, proxy, consent tender offer or power exchange offer for shares of attorney with respect to, or deposit into a voting trust, the Shareholder Owned SharesVoting Stock;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) . make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission) to voteSEC), or seek to advise or influence any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementVoting Stock;
(vii) iv. publicly announce or submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of concerning (with or without conditions) any extraordinary transaction involving an acquisition the Company or any successor thereto, any Subsidiary or division thereof, or any of the Company’s their securities or assets;
(ix) v. form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act, for the purpose of acquiring, holding, voting or disposing of any securities of the Company;
vi. take any action that could reasonably be expected to require the Company or any successor thereto to make a public announcement regarding the possibility of any of the events described in clauses (i) through (iii) above;
vii. enter into any arrangements with any third party concerning any of the foregoing; or
viii. request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 6.4. The foregoing limitations do not apply to transactions or agreements solely among an Equity Holder and its Affiliates.
b. Nothing in clause (ii) or (v) of Section 6.4(a) shall be construed to (a) prohibit any Equity Holder or Affiliate of such Equity Holder from confidentially, and in good faith, proposing any transaction to the Board of Directors or officers of the Company or discussing or suggesting such proposal or (b) prohibit the Board Designees from confidentially, in good faith and in the performance of his or her duties as a member of the Board of Directors, discussing a proposal made by the Company or a Third Party concerning any extraordinary transaction involving the Company or any successor thereto, any Subsidiary or division thereof, or any of their securities or assets, with the Board of Directors and representatives of the Company and its advisors who are involved in the evaluation or execution of any such proposal on behalf of the Company.
c. Each Equity Holder agrees that, until the Standstill Termination Date, it shall promptly notify the Company of any new acquisition or disposition, or entry into any agreement or arrangement which could reasonably result in any new acquisition or disposition, of Beneficial Ownership of Voting Stock or any other securities of the Company by such Purchaser or any of its Affiliates, including the material details thereof.
d. If any Transfer pursuant to Section 9.1(a) and 9.1(b) would result in a transferee and such transferee’s Affiliates and any “group” (as defined in Section 13(d)(3) under of the Exchange Act) in connection with any which such transferee or Affiliate of such transferee is a member (collectively, the “Transferee Group”) holding Voting Stock represented by all shares of Voting Stock Beneficially Owned by the Transferee Group being more than 20% of the foregoing;
(x) seekVoting Stock outstanding plus that number of shares of Common Stock issuable upon a net exercise of Warrants, in any way which may be reasonably likely then, as a condition to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees shall deliver a written instrument to the Company in writing form and substance reasonably satisfactory to the Parent to be bound and Company confirming that the transferee is subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination obligations of this Agreement (including the obligations contained in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares this Section 6.4 and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this AgreementSection 9).
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each The Investors, and the Investor Director in his capacity as the managing member of the Shareholders hereby agrees Investors, agree that, from and after the date hereof of this Agreement until the earlier expiration of the Effective Time Standstill Period, neither the Investors nor any of the Merger their Affiliates or Associates will, and the termination will cause each of the Merger Agreementtheir Affiliates, such Shareholder shall notAssociates or representatives not to, directly or indirectly, unless (i) specifically requested by Parent in any manner, acting alone or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementin concert with others:
(i) sellseek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)propose, or enter into make any contract, option or other agreement statement with respect to, or consent facilitate, finance, solicit, assist, endorse, negotiate with, or provide any information to any person or entity with respect to, a Transfer ofmerger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the record Company or beneficial ownership any of its subsidiaries, whether or both or voting power, not any such transaction involves a change of any or all control of the Shareholder Owned SharesCompany; provided, however, that nothing in this Section 3(a)(i) shall restrict the ability of the Investors to participate in any transaction offered generally to holders of the Common Stock of the Company on a pro rata basis;
(ii) enter into except as provided in Section 1 of this Agreement, seek, propose, solicit, assist or endorse any voting agreement, proxy, consent person or power of attorney entity with respect toto a change in structure, size or deposit into composition of the Board or a voting trust, change in the Shareholder Owned Sharesexecutive officers of the Company;
(iii) enter into submit any short sale stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, 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;
(iv) 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 any recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of the Common Stock or other voting securities of the Company, or grant a proxy with respect to the voting of the Common Stock or other voting securities of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(v) 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 (other than with Affiliates or Associates of the Investors) with respect to the Common Stock or substantially identical property other voting securities of the Company, or deposit any shares of Common Stock or other voting securities of the Company in a voting trust or similar arrangement or subject any shares of Common Stock or other voting securities of the Company to any voting agreement or pooling arrangement, except as expressly set forth in this Agreement;
(vi) 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 of the Company held by the Investors or any of their Affiliates to any person or entity, other than a Permitted Transferee, that would result in such person or entity, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 9.9% of the shares of Common Stock of the Company outstanding at such time;
(vii) except as provided in Section 3(b), seek publicly, or through discussions with anyone other than the Company or the Board, any control or influence over the Company’s policies, management and strategies or publicly oppose any recommendation of the Board, or publicly seek to have the Company amend its charter or bylaws;
(viii) seek publicly, or through discussions with anyone other than the Company or the Board, the divestiture, break-up or spin-off of the Company’s businesses or assets;
(ix) except as specifically provided in Section 2, vote for any nominee for election to the Board, other than those nominated or supported by the Board;
(x) except as specifically provided in Section 1 and Section 2, seek to place a representative or an Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 3;
(xii) call, seek to call or request the calling of a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or, except in the Investor Director’s capacity as a director, for any books and records of the Company;
(xiii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or businesses of the Company or any rights or options to acquire any such assets or business from any person;
(xiv) publicly request that the Company amend or waive any provision of this Section 3;
(xv) disclose publicly, or privately in a manner that could reasonably be expected to become public (except with the consent of the Company), any intention, plan, position or arrangement inconsistent with the foregoing; or
(xvi) enter into any agreement, arrangement or acquire an offsetting derivative contract with respect understanding concerning any of the foregoing (other than this Agreement) or solicit or knowingly encourage any person to undertake any of the foregoing activities; provided, however, that nothing in this Section 3 or elsewhere in this Agreement shall prohibit the Investor Director, acting in his or her fiduciary capacity as a director of the 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 the Shareholder Owned Shares Chief Executive Officer, the Chief Financial Officer or substantially identical propertyany other director of the Company in his capacity as a director.
(b) Notwithstanding the provisions of Section 3(a) or Section 7(b), the Investors shall not be prohibited from voting, or disclosing publicly in an amendment to the Investors’ Schedule 13D (the “13D Amendment”) filed with the SEC their intention to vote, their Common Stock or other voting securities against an Extraordinary Transaction in any shareholder meeting held to approve such an Extraordinary Transaction or reasons for voting so; provided that:
(i) the Company has been provided with written notice of such intent at least five (5) business days prior the filing of the 13D Amendment;
(ii) the Company shall have been afforded a reasonable opportunity to review and comment upon the 13D Amendment prior to such filing and the Investors shall have considered in good faith any changes proposed by the Company;
(iii) in no event shall, and nothing contained in this Agreement shall be construed to permit, the Investors or the Investor Director engage in, directly or indirectly, any solicitation of proxies or written consents or otherwise become a participant in a solicitation in opposition to an Extraordinary Transaction during the Standstill Period; and
(iv) transfer notwithstanding anything to the contrary contained Section 7(b) or elsewhere in this Agreement, the Company shall be entitled, in any form, manner or timing it deems appropriate, to respond to any of the economic interest in matters or allegations that are described in, or are otherwise the Shareholder Owned Shares subject of, the 13D Amendment; provided, however, that the Company shall not issue any such response or enter into any transaction that other related communication between the time it has such effect;been provided with the copy of the 13D Amendment and the time the 13D Amendment is filed by the Investors with the Securities and Exchange Commission.
(vc) The Investors agree that from the date that the Rights Agreement (or any successor rights agreement) expires on its terms or is otherwise terminated until the expiration of the Standstill Period, neither the Investors nor any of their Affiliates or Associates will, and will cause each of their Affiliates, Associates or representatives not to, directly or indirectly, in any manner, acting alone or in concert with others, acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets record or beneficial ownership of the Company or any subsidiary or division thereof;
(viA) make, or interests in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities indebtedness or assets;
(ixB) form, join or Common Stock of the Company representing in any way participate in a “group” the aggregate (as defined in Section 13(d)(3) under amongst the Exchange ActInvestors and their Affiliates and Associates) in connection with any excess of the foregoing;
Investors’ (xand their Affiliates and Associates) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure respective aggregate beneficial ownership as of the time of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified termination or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation expiration of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Rights Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under or any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentencesuccessor rights agreement), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to As used in this Agreement, the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.term(s):
Appears in 1 contract
Sources: Investor Agreement (Baker Street Capital Management, LLC)
Standstill. At no time during the Standstill Period (aas hereinafter defined) Each shall any Shareholder (except with the approval or consent of the Shareholders hereby agrees thatBoard as evidenced by a resolution duly adopted by the Board), from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notin any manner, directly or indirectly, unless (i) specifically requested do, or cause or permit any Person controlled by Parent or (ii) expressly contemplated by such Shareholder to do, any of the terms of this Agreement or the Merger Agreementfollowing:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)acquire, or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets beneficial interest in Voting Shares, or any securities convertible into or exercisable or exchangeable for, or any other right to acquire, any Voting Shares; provided, however, that the acquisition of (A) Common Stock pursuant to an employment agreement, if any, (B) Voting Shares issued by NAC by way of stock dividends or other distributions made on a pro rata basis with respect to all outstanding Voting Shares and (C) shares of Common Stock offered to such Shareholder, or shares of Common Stock issuable upon the exercise, exchange or conversion of any securities that are exercisable or exchangeable for, or convertible into shares of Common Stock and that have been offered to such Shareholder, pursuant to a general rights offering by NAC made on a pro rata basis to all of its shareholders, shall not be violative of the Company or any subsidiary or division thereofforegoing;
(viii) make, solicit proxies or consents or become a "participant" in any way participate in, directly or indirectly, any “a "solicitation” of “proxies” " (as such terms are used defined in Regulation 14A under the rules Exchange Act) of the Securities and Exchange Commissionproxies or consents with respect to any Voting Shares with regard to any matter;
(iii) to vote, or seek to advise advise, encourage or influence any Person with respect to the voting of, of any voting securities of NAC, 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 NAC or any change of control of NAC, or for the Company purpose of convening a stockholders' meeting of NAC; provided, however, that (including by making publicly known A) any Shareholder may tender in any such Shareholder’s position on tender or exchange offer and (B) no presentation before or other communication with the Board, and no discussion between or among any matter presented to shareholders), other than to recommend that shareholders members of the Company vote in favor Shareholder Group or any Family Member or Members of any member of the Merger and Shareholder Group or any Principal of any Shareholder, shall be deemed to constitute a violation of the Merger Agreementforegoing restriction or prohibition;
(viiiv) submit 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 Company SEC or otherwise), or is otherwise known, to be the beneficial owner of more than 5% of the outstanding Capital Stock or any shareholder proposal under Rule 14a-8 under class or series thereof if, upon consummation of such acquisition, the Exchange ActShareholder Group would (in the aggregate) own more than 5% of any class of equity securities of such entity;
(viiiv) make any public announcement with respect toregarding any possibility, intention, plan or arrangement relating to a tender or exchange offer for securities of NAC or a business combination (or other similar transaction that would result in a change of control), sale of assets, liquidation or other extraordinary corporate transaction between such Shareholder and NAC, or submit take any action that could reasonably be expected to require NAC to make a proposal for, or offer of (with or without conditions) public announcement regarding any extraordinary transaction involving an acquisition of the Company’s securities or assetsforegoing;
(ixvi) deposit any Voting Securities in a voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of securities of NAC, other than as provided in this Agreement; or
(vii) form, join or in any way participate in a “group” partnership, limited partnership, syndicate or other group (or otherwise act in concert with any other Person, except as defined in a member of the Shareholder Group), for the purpose of (A) acquiring, holding or voting of securities of NAC (other than pursuant to, or as contemplated by, this Agreement), or (B) taking any other actions restricted or prohibited under clauses (i) through (vi) of this Section 13(d)(3) under the Exchange Act) in connection 6(a), or announce an intention to do, or enter into any arrangement or understanding with others to do, any of the foregoing;
actions restricted or prohibited under clauses (xi) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision through (vi) of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement6(a).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Lockup, Standstill and Voting Agreement (National Auto Credit Inc /De)
Standstill. (a) Each of the Shareholders hereby agrees that, from On and after the date hereof until the earlier second anniversary of the Effective Time Closing (the “Standstill Period”):
(i) Shareholder will not, and shall ensure that his Controlled Persons and any Person acting on behalf of, or in concert with, him or any of the Merger and the termination of the Merger Agreementhis Controlled Persons will not, such Shareholder shall notfacilitate or encourage any other Person to, directly or indirectly, unless in any manner, effect any acquisition of ownership (iincluding by operation of law and including the acquisition of the right to vote or direct the voting of any Company Securities) specifically requested of Company Securities; provided that such prohibition shall not apply to the Stock Consideration initially received by Parent or Shareholder under the Merger Agreement; and
(ii) expressly contemplated by Shareholder will not, and shall ensure that his Controlled Persons and any Person active on behalf of, or in concert, with him or any of his Controlled Persons will not, Transfer any Company Securities.
(b) During the terms of this Agreement Standstill Period, Shareholder will not, and shall ensure that his Controlled Persons and any Person acting on behalf of, or the Merger Agreementin concert with, him or his Controlled Persons will not, facilitate or encourage any other Person to, directly or indirectly, in any manner:
(i) selleffect or seek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into announce any contractintention to effect or otherwise participate in, option any tender offer, take-over bid, plan of reorganization, merger, exchange offer, consolidation, business combination, recapitalization, restructuring or other agreement with respect to, similar transaction involving the Company or consent to, a Transfer of, the record any of its Subsidiaries (or beneficial ownership or both or voting power, any of any or all of the Shareholder Owned Sharestheir respective assets);
(ii) enter into any voting agreement(A) effect or seek, proxy, consent offer or power of attorney with respect topropose (whether publicly or otherwise) to effect, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into announce any short sale with respect intention to the Common Stock effect or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way otherwise participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC or other Applicable Law) to vote, or withhold from voting, or seek to advise or influence any Person with respect to the voting voting, or withholding from voting, of, or conduct any voting securities other type of the Company referendum (including by making publicly known binding or non-binding) with respect to, any Voting Securities, (B) solicit, knowingly facilitate or knowingly encourage, directly or indirectly, any third party to engage in any such Shareholder’s position on any matter presented to shareholders)solicitation, other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiC) make any public announcement with respect tostatement in support of any such third-party solicitation, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixD) form, join or in any way participate in a “group” group with respect to any Voting Securities or (E) seek or propose the election or appointment of, except as defined permitted by Section 3.02 hereof, any person to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or seek or propose the removal of, except as permitted by Section 3.03 hereof, any member of the Board;
(iii) (A) call, request the calling of or otherwise seek or assist in Section 13(d)(3the calling of a meeting of the shareholders of the Company, or (B) seek, propose or submit, any proposal or matter of business (whether binding or not) to be considered or voted upon at a meeting of the shareholders of the Company, including pursuant to Rule 14a-8 under the Exchange ActAct or submit, or participate in, any “shareholder access” proposal;
(iv) publicly seek or propose to control the management or policies of the Company, except in connection accordance with the terms of any of employment agreement entered into by Shareholder and the Company at the Closing and from time to time thereafter;
(v) disclose any intention, plan or arrangement prohibited by or inconsistent with the foregoing;
(xvi) seekrequest that the Company (or its directors, in any way which may be reasonably likely to requireofficers, involve employees or trigger public disclosure of such request pursuant to applicable Lawagents), to have directly or indirectly, amend or waive any provision of this Section 3.1 amended, modified or waived(including this sentence);
(xivii) otherwise take, directly or indirectly, take any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or action which could would reasonably be expected to have the effect of preventing, impeding, interfering with result in or adversely affecting the consummation require public disclosure regarding any of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): types of matters set forth in clauses (i) a pledge of Shareholder Owned Shares required under through (vi); or
(viii) agree or commit to any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)foregoing.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each of the Shareholders Purchaser hereby agrees that, from and after the date hereof until the earlier Standstill Termination Date, unless specifically consented in writing by the Company to do so, neither such Purchaser nor its Affiliates will, or will cause or knowingly permit any of the Effective Time of the Merger and the termination of the Merger Agreementits or their directors, such Shareholder shall notofficers, partners, managers or employees to, in any manner, directly or indirectly, unless : (i) specifically requested by Parent effect or (ii) expressly contemplated by the terms of this Agreement seek, initiate, offer or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into cause or participate in or in any contractway advise or, option assist any other person to effect or other agreement with respect toseek, initiate, offer or consent topropose (whether publicly or otherwise) to effect or cause or participate in, a Transfer of, the record any acquisition of any equity or equity-linked securities (or beneficial ownership thereof); any tender or both exchange offer, merger, consolidation or voting powerother business combination involving the Company; any recapitalization, of any restructuring, liquidation, dissolution or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale other extraordinary transaction with respect to the Common Stock Company; or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company Company, provided, however, that notwithstanding the foregoing, nothing in this clause (including by making publicly known such Shareholder’s position on i) shall prevent or limit (a) the ability of any matter presented to shareholders), other than to recommend that shareholders director of the Company vote in favor that is affiliated with such Purchaser to acquire, exercise or dispose of any stock options or other equity securities of the Merger Company received as compensation for serving as a director, or perform his or her duties as a director of the Company or (b) the Purchasers and their Affiliates (and their respective directors, officers, partners, managers or employees) from purchasing equity or equity-linked securities of the Company representing in the aggregate, together with the Underlying Securities, up to 20% of the outstanding Common Stock on a Fully-Diluted Basis in the aggregate for the Purchasers and their Affiliates; provided, further, that, notwithstanding anything to the contrary in this Section 6.8, at any time or from time to time following receipt of the Requisite Stockholder Approval, the Purchasers and their Affiliates will not be prohibited from exercising, converting or exchanging any securities of the Company then-held (including the Warrants and the Merger Agreement;
(vii) submit to warrants issued under that certain Warrant |US-DOCS\142687345.5|| Agreement dated as of March 8, 2022, between the Company any shareholder proposal under Rule 14a-8 under and the Exchange Act;
other signatories thereto) for shares of Common Stock; (viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixii) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with respect to any securities of the Company that seeks to do any of the actions prohibited by clause (i) above; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, provided, however, that notwithstanding the foregoing;
, nothing in this clause (xiii) seekshall prevent or limit the ability of any director of the Company that is affiliated with such Purchaser to serve as a director, in or perform his or her duties as a director of the Company or any way which may be reasonably likely to require, involve or trigger public disclosure related activities of such request pursuant to applicable LawPurchaser’s officers, to have employees or representatives in support of such director; (iv) take any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or action which could reasonably be expected to have force the effect of preventing, impeding, interfering with or adversely affecting the consummation Company to make a public announcement regarding any of the transactions contemplated types of matters set forth in this Section 6.8 (other than actions taken by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge director of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts the performance of his or her duties as are necessary such); or (v) enter into any agreements, discussions or arrangements with any third party with respect to satisfy any of the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer foregoing (other than ordinary course discussions by a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty director of the Company Board in the performance of his or any member thereof or which otherwise challenges the Merger Agreementher duties as such).
Appears in 1 contract
Sources: Warrant Purchase Agreement (Kennedy-Wilson Holdings, Inc.)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after For a period commencing with the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement[****], such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer neither Q nor any of its agents shall,, without the economic interest in the Shareholder Owned Shares prior written consent of E or enter into any transaction that has such effect;
(v) its board of directors: acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of E or any subsidiary thereof, or of any successor to or person in control of E, or any assets of the Company E or any subsidiary or division thereof;
(vi) thereof or of any such successor or controlling person; make, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of “"proxies” " to vote (as such terms are used in the rules of the Securities and Exchange Commission) to voteCommission ("SEC")), or seek to advise or influence any Person person or entity with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) E; make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition E or any of the Company’s its securities or assets;
(ix) ; form, join or in any way participate in a “"group” (" as defined in Section 13(d)(3) under of the Exchange Act) , in connection with any of the foregoing;
(x) seek; otherwise act or seek to control or influence the management, Board of Directors or policies of E; take any action that could reasonably be expected to require E to make a public announcement regarding the possibility of any of the events described in this SECTION 9.9; or request E or any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeits agents, directly or indirectly, any actions with the purpose of avoiding to amend or circumventing waive any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)SECTION 9.9.
(b) Any Transfer The restrictions in violation this SECTION 9.9 shall apply, mutatis mutandis,
(i) to E and its agents regarding any transactions in any voting securities of Section 3.1(aQ and / or REC, and
(ii) shall be void. Each Shareholder agrees to authorize Q and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all its agents regarding any transactions in any voting securities of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned SharesREC.
(ciii) Prior to the termination of this Agreement in accordance with REC and its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, agents regarding any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, transactions in any court voting securities of E and / or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.Q.
Appears in 1 contract
Sources: Master Joint Venture Agreement (Evergreen Solar Inc)
Standstill. (a) Each Until the seventh anniversary of the Shareholders hereby date hereof, TCG agrees that, from (and after shall cause its Permitted Transferees to agree) that except as specifically permitted or contemplated by this Agreement or the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Stock Purchase Agreement, such Shareholder TCG and its Permitted Transferees and each of their respective Affiliates shall not, directly or indirectly, unless in one or in a series of related transactions (i) specifically requested by Parent and whether acting alone or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:together in concert with others):
(i) sellexcept as may be required by applicable laws, transferrules or regulations, tendermake any public announcement or disclosure in respect of any plan, pledgecommitment, encumbercontract, assign, hypothecate, distribute, grant, gift, encumber, assign arrangement or otherwise dispose understanding relating to any acquisition of (whether by capital stock of the Company or a merger, operation business combination, sale of Law or otherwise) (collectivelyassets, a “Transfer”)liquidation, or enter into any contractrestructuring, option recapitalization or other agreement with respect to, extraordinary corporate transaction relating to the Company or consent to, a Transfer of, the record any of its successors or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Sharessubsidiaries;
(ii) enter deposit capital stock of the Company into a voting trust or subject capital stock of the Company to voting agreements, or grant to or constitute any voting agreement, proxy, consent Persons(s) with any proxy or power of power-of-attorney with respect toto any capital stock of the Company to any person not designated by the Company who is not an officer, director or deposit into employee of TCG or a voting trust, the Shareholder Owned SharesPermitted Transferee;
(iii) enter into disclose publicly any short sale intention, plan or arrangement inconsistent with respect the foregoing or the other provisions of this Agreement relating to any capital stock of the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;Company; or
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquirediscussions, offer to acquirenegotiations, arrangements or agree to acquire, directly or indirectly, by purchase or otherwise, understandings with any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person third party with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect a view to, or submit a proposal foradvising, aiding, abetting, soliciting, inducing or offer of (with or without conditions) encouraging, any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with action prohibited by any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, if the following Transfers are expressly permitted under Company's Board of Directors approves and/or recommends to its stockholders for approval any Change-in-Control Transaction, then the restrictions contained in this Agreement (each Section 3.1 shall not apply to TCG during the pendency of any such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent approved or recommended Change-in-Control Transaction and said restrictions shall cease to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (any further force or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of effect upon the consummation of any such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)approved or recommended Change-in-Control Transaction.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Investor's Rights Agreement (Premiere Publishing Group, Inc.)
Standstill. (a) Each of During the Shareholders hereby agrees that, from and after period beginning on the date hereof until and ending on the earlier date that is the third anniversary of the Effective Time of Closing Date (the Merger and the termination of the Merger Agreement"Standstill Period"), such Shareholder shall not, directly or indirectly, unless (i) except as specifically requested by Parent or (ii) expressly contemplated permitted by the terms of this Agreement or the Merger Agreement:
, Seller shall not, and shall cause his Affiliates (ias defined in Section 5.3) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect not to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets (i) Voting Securities (as defined in Section 5.3), or (ii) direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) any Voting Securities.
(b) During the Standstill Period, except upon the express prior written invitation of the Company Company, Seller shall not, and shall cause his Affiliates not to, directly or any subsidiary indirectly, singly or division thereof;
as part of a partnership, limited partnership, syndicate or other group (vias those terms are used within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which meanings shall apply for all purposes of this Agreement): (i) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are defined or used in Regulation 14A under the rules Exchange Act) or exempt solicitation under Rule 14a-2(b)(1) or otherwise with respect to any Voting Securities (including by the execution of actions by written consent), become a "participant" or a "participant in a solicitation" (as such terms are defined or used in Regulation 14A under the Securities and Exchange CommissionAct) to vote, or seek to advise or influence any Person with respect to the voting of, Company or otherwise communicate with any voting securities stockholder of the Company pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; (including by making publicly known such Shareholder’s position on any matter presented to shareholders)ii) initiate, other than to recommend that shareholders propose or otherwise solicit, or participate in the solicitation of, stockholders for the approval of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit one or more stockholder proposals with respect to the Company Company, including any shareholder proposal under made pursuant to Rule 14a-8 under the Exchange Act;
(viii) , or encourage or induce any other individual or entity to initiate any stockholder proposal relating to the Company, or make any public announcement with respect to, demand or submit a proposal for, or offer of (with or without conditions) request for any extraordinary transaction involving an acquisition list of the Company’s securities or assets;
holders of Voting Securities; (ixiii) form, encourage the formation, join or in any way participate in a “"group” " which owns or seeks or offers to acquire beneficial ownership of Voting Securities or rights to acquire such securities or which seeks or offers to acquire control of the Company or influence its policies; (as defined iv) solicit, seek or offer to effect, negotiate with or provide any information to any party with respect to, make any statement or proposal, whether written or oral, either alone or in Section 13(d)(3) concert with others, to the board of directors of the Company, to any director or officer of the Company or to any other stockholder of the Company with respect to, or otherwise formulate any plan or proposal or make any public announcement, proposal, offer or filing under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding similar or circumventing any provision of this Section 3.1 successor statute or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Mergerotherwise, or such Shareholder’s ability take action to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request cause the Company to notify make any such filing, with respect to: (A) any form of business combination, restructuring, recapitalization, dissolution or similar transaction involving the Company or any Affiliate thereof, including, without limitation, a merger, tender or exchange offer, share repurchase or liquidation of the Company’s transfer agent that there is a stop transfer order with respect to all 's assets, (B) any acquisition or disposition of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect assets material to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock (C) any request to amend, waive or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to terminate the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock Agreement or voting interests shall automatically become subject to (D) any proposal or other statement inconsistent with the terms of this Agreement.
; (dv) Prior to the termination of this Agreement in accordance with its termsotherwise act, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law alone or in equityconcert with others (including by providing financing for another party), to seek or offer to acquire control of the Company or influence, in any court manner, its management, board of directors or before policies; or (vi) assist or encourage any Governmentthird party, which alleges that the execution and delivery whether or not a "group" with such third party, to take any of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementactions enumerated in this Section 2.1(b).
Appears in 1 contract
Standstill. For a period of eighteen (a18) Each of the Shareholders hereby agrees that, months from and after the date hereof until the earlier of the Effective Time your signing of the Merger and the termination of the Merger this Agreement, such Shareholder shall notneither you nor your affiliates who receive Confidential Information will (or will assist, encourage or participate in efforts by others to), directly or indirectly, unless without having been specifically requested to do so in writing by the Company’s board of directors: (i) specifically requested by Parent propose any business combination, acquisition or other extraordinary transaction involving the Company, its successors, its or their securities or any substantial part of its or their assets, or acquire or agree to acquire any securities of the Company or any of its successors; (ii) expressly contemplated seek or propose to influence or control, through a proxy solicitation or otherwise, the board of directors, management or policies of the Company or any of its successors (provided that this clause shall not prohibit you from voting, as you determine in your sole discretion, common stock of the Company owned by the terms you); (iii) make any public disclosure, or take any action, including requesting a waiver or modification of any provision of this Agreement paragraph, that would reasonably be expected to require the Company or any of its successors to make any public disclosure, with regard to any of the Merger Agreement:
foregoing actions; or (iiv) sellinstigate, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign encourage or otherwise dispose of assist any third party (whether by merger, operation of Law or otherwise) (collectively, including forming a “Transfer”)group” with an such third party) to do, or enter into any contract, option discussions or other agreement agreements with any third party with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of to any or all of the Shareholder Owned Shares;
actions set forth in clauses (iii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
– (iii) enter into any short sale with respect above. You represent and warrant to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any Company that, as of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
date hereof, you beneficially own (vbeneficial ownership being defined for purposes of this Agreement as under section 13(d) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange CommissionAct of 1934, as amended) to vote445,100 shares of common stock of the Company. Notwithstanding the foregoing: If the Company publicly announces, or seek otherwise advises you, that it is abandoning the process of effecting a Transaction involving the Company with all other persons or groups, then, subject to advise or influence any Person compliance with respect applicable law and Section 5 hereof, you may thereafter acquire up to 10% of the voting of, any voting issued and outstanding securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the open market transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)and/or block transactions.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Confidentiality Agreement (Sagard Capital Partners, L.P.)
Standstill. (a) Each Except for purchases of the Shareholders hereby agrees that, from shares permitted by Section 3 and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms 8 of this Agreement and its exercise of rights pursuant to Section 6, the Investor agrees that during the Standstill Period, the Investor will not, and the Investor will not permit any Affiliate to, and the Investor will not act in concert with or the Merger Agreementpermit any Affiliate to act in concert with any Person to:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any 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 division thereof or division thereofof any such successor or controlling person; provided, however, that the -------- ------- foregoing restrictions shall not apply to any acquisition or proposed acquisition of securities by way of stock dividends, stock reclassifications or other similar distributions on a pro rata basis to holders of securities generally; and provided further -------- ------- that no Person shall be deemed to have violated the foregoing restrictions by virtue of (and only to the extent of) any increase in the number of shares of Common Stock beneficially owned by such Person if such increase is the result of such Person being acquired by or merged with a Person (who is not an Affiliate of the Investor) (an "Acquiring Person") who beneficially owns any shares of Common Stock at ---------------- the time of such acquisition or merger if the Acquiring Person or the resulting or surviving entity of such merger or acquisition agrees in writing to be bound by the terms and conditions of this Agreement applicable to the Investor;
(viii) makeseek or propose to influence or control the management or policies of the Company, make or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of “"proxies” " (as such terms are used in the rules of the Securities and Exchange CommissionSEC) with respect to voteany Voting Stock, or seek to advise or influence any Person with respect to the voting of, of any voting securities of the Company Voting Stock (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than as expressly provided in Section 6 of this Agreement) or deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated in this Agreement, subject any Voting Stock to recommend that shareholders any arrangement or agreement with any Person with respect to the voting of the Company vote in favor of the Merger and the Merger Agreementsuch Voting Stock;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiiii) make any public announcement with respect to, or submit a proposal for, for or offer of (with or without conditions) ), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving an acquisition the Company or any Subsidiary thereof or any of the Company’s their securities or assets;
(ixiv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in in, a “group” (as defined in Section 13(d)(3) under the Exchange Act) 13D Group, in connection with any of the foregoing;; or
(xv) seekrequest the Company or any of its representatives, in any way which may be reasonably likely to require, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend or waive any provision of this Section 3.1 amended8 (including this sentence); provided, modified or waived;
however, that: (xiw) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation none of the transactions contemplated by foregoing shall prevent, restrict, -------- ------- encumber or in any way limit the Merger Agreement, including exercise of the Merger, fiduciary rights and obligations of the Investor Director as a director or such Shareholder’s his ability to perform its obligations under this Agreement. Notwithstanding vote on matters, influence management or the foregoing, other directors or otherwise to act in his capacity as a director; (x) none of the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): foregoing shall prevent any Person (i) a pledge of Shareholder Owned Shares required under any credit facility from selling or voting its Common Stock in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions compliance with Section 6 or Section 9 of this Agreement, (ii) Transfers to a family member from exercising the Warrant (as defined in the Purchase Agreement), (iii) from purchasing shares of a Shareholder (or to a trust for the benefit of a family memberCommon Stock in accordance with Section 8(b) or (c) hereof, or (iv) from soliciting, offering, seeking to a charitable organization if (x) the Shareholder retains voting control effect and negotiating with any Person with respect to transfers of the Shareholder Owned Shares so Transferred shares of Common Stock otherwise permitted by Section 9; or (y) such transferee agrees in writing reasonably satisfactory the event that the Company has delivered a Change of Control Notice to the Parent Investor, the Investor shall be permitted to confidentially propose to the Board of Directors of the Company a proposal or offer by the Investor regarding a Change of Control Transaction, provided that such proposal or offer would not reasonably be required to be bound and subject publicly disclosed by the Investor or any Affiliate thereof (on a Schedule 13D or otherwise), the Company or otherwise.
(i) Notwithstanding anything to the terms contrary in Section 8(a), until the occurrence of a Termination Event, the Investor shall have the right to purchase shares of Common Stock in the open market in accordance with this Section 8(b) if the Investor's percentage ownership interest of the outstanding shares of Common Stock is reduced as a result of (x) any issuance of shares of Common Stock in exchange for the 5% convertible notes due April 1, 2007 (the "Notes") of the Company ("Exchange Dilution") or (y) any issuance of shares of ----- ----------------- Common Stock upon the exercise or conversion of any other securities of the Company issued in exchange for the Notes ("Conversion Dilution"). -------------------
(ii) In the event of Exchange Dilution, the Investor shall have the right for 30 days (the "Exchange Purchase Period") following the ------------------------ issuance of Common Stock in connection with the Exchange Dilution to purchase shares of Common Stock in the open market to increase the number of shares of Common Stock owned by the Investor and provisions the Holder Affiliates up to the number equal to the product determined by multiplying the percentage ownership interest of this Agreement, the Investor and the Holder Affiliates of the outstanding Common Stock of the Company immediately prior to the event that gave rise to the Exchange Dilution by the number of shares of Common Stock of the Company outstanding immediately after the event that gave rise to the Exchange Dilution.
(iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects of Conversion Dilution, within 20 days after the end of each quarter, commencing on June 30, 2002, the Company shall provide the Investor with a Permitted Transfer written notice (other than a Permitted Transfer described in clause (ivwith reasonable detail) of the immediately preceding sentence), including number of shares of Common Stock issued in connection with a Shareholder Owned Shares Proposal Conversion Dilution and the Investor shall have the right for 30 days (subject the "Conversion Purchase Period") -------------------------- after receipt of such notice to compliance with Section 3.3(b)), such Shareholder shall promptly (purchase shares of Common Stock in the open market to increase the number of shares of Common Stock owned by the Investor and in any event within 24 hours after consummation thereof) notify Parent the Holder Affiliates up to the number equal to the product determined by multiplying the percentage ownership interest of the consummation of such Permitted Transfer Investor and the material details thereof, including the identity Holder Affiliates of the acquiror, outstanding Common Stock of the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant Company immediately prior to the terms hereof, an agreement in writing reasonably satisfactory event that gave rise to the Parent Conversion Dilution by the number of shares of Common Stock of the Company outstanding immediately after the event that the transferee agrees to be bound and subject gave rise to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned SharesConversion Dilution.
(c) Prior Notwithstanding anything to the termination contrary in Section 8(a), until the occurrence of this Agreement a Termination Event, the Investor shall have the right to purchase shares of Common Stock in the open market in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and Section 8(c) if the number of shares of Company Common Stock held issuable to the Investor upon any exercise of the pre-emptive rights granted pursuant to Section 3 of this Agreement shall be limited by operation of Section 3(v) of this Agreement (a "Pre-Emptive Right Limit"). In the event of the occurrence of a Pre-Emptive ----------------------- Right Limit, the Investor shall have the right for 30 days (the "Pre-Emptive ----------- Right Purchase Period") following the completion of the transaction that --------------------- resulted in such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such Pre-Emptive Right Limit to purchase in the open market the number of shares of Company Common Stock or voting interests shall automatically become subject that the Investor was not otherwise permitted to purchase as a result of the terms application of this AgreementSection 3(v).
(d) Prior to In the termination of this Agreement in accordance with its termsevent that an Exchange Purchase Period, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join a Conversion Purchase Period or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement a Pre-Emptive Right Purchase Period occurs during a black out period as defined by the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, the Exchange Purchase Period, the Conversion Purchase Period or the approval of Pre-Emptive Right Purchase Period shall be extended such that in no event shall the Merger Agreement Investor have less than 30 days to make open market purchases pursuant to Section 8(b) or 8(c).
(e) The rights granted pursuant to Section 8(b) and 8(c) may not be assigned by the Company Board, breaches any fiduciary duty Investor and shall terminate and be null and void and of no further force and effect upon the Company Board or any member thereof or which otherwise challenges the Merger Agreementoccurrence of a Termination Event.
Appears in 1 contract
Standstill. (a) Each Until a Purchaser, together with its Affiliates, ceases to Beneficially Own greater than 5% of the Shareholders hereby agrees thatthen outstanding Common Stock (determined on a fully diluted, from and after as-converted basis), each of such Purchaser’s Purchaser Parties shall not, without the date hereof until the earlier prior approval of the Effective Time Board of the Merger and the termination of the Merger Agreement, such Shareholder shall notDirectors, directly or indirectly, unless through its Subsidiaries or any other Persons, or in concert with any Person, or as a “group” (ias defined in Section 13 of the Exchange Act) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementwith any Person:
(ia) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquirepurchase, offer to acquirepurchase, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise acquire Beneficial Ownership of any Common Stock, or any assets securities convertible or exchangeable into Common Stock, excluding any shares of Class A Common Stock or other securities acquired pursuant to a conversion of the Company Preferred Stock, or any subsidiary or division thereofotherwise acquired pursuant to the Transaction Documents;
(vib) make, or in any way participate in, directly or indirectly, any “solicitation” solicitation of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) proxies to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor Subsidiaries, or seek or propose to influence, advise, change or control the Board of Directors, management, policies, affairs or strategy of the Merger and the Merger AgreementCompany by way of any public communication or other communications to security holders intended for such purpose;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiic) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any acquisition of or extraordinary transaction involving an acquisition the Company or any of the Company’s Subsidiaries or any of their respective securities or assets;
(ixd) formeffect or seek to effect (including by entering into discussions, join 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 Class A Common Stock or Preferred Stock) in a “group” 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 any of the Company Subsidiaries; or
(as defined in Section 13(d)(3e) under the Exchange Act) enter into any discussions, negotiations, arrangements or understandings with or form a group with, any third party in connection with such third party’s taking, planning to take, or seeking to take any of the foregoingactions prohibited by clauses (a) through (d) of this Section 5.1 or otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors or the management or policies of the Company, including the Company Subsidiaries;
(xf) seekprovided, however, that nothing in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
5.1 will limit (xii) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such ShareholderPurchaser Party’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement vote or Transfer (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, Section 4.2) its Class A Common Stock or Preferred Stock or otherwise exercise rights under its Preferred Stock; (ii) Transfers the ability of any director elected by the holders of Preferred Stock pursuant to the Certificate to vote or otherwise exercise its fiduciary duties as a family member of a Shareholder (or to a trust for the benefit Board of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, Directors; (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory ability of any director elected by the holders of Preferred Stock pursuant to the Parent Certificate to be bound and subject seek to participate fully as a director on the terms and provisions Board of this Agreement, and Directors; or (iv) Transfers the ability of a Purchaser or the holders of Preferred Stock to the Company in such amounts as are necessary exercise their rights to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required elect directors pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)Certificate.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Earthstone Energy Inc)
Standstill. (a) Each of From the Shareholders hereby agrees that, from and after Signing Date through the date hereof until the earlier of the Effective Time of the Merger and Closing Date or prior to the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect negotiations relating to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transferin the event that the Closing does not occur on or prior to December 31, a "Permitted Transfer"): 1999), Seller will not, and will use its best efforts to cause its Representatives to not, directly or indirectly, (i) a pledge initiate, solicit, seek, encourage or otherwise facilitate (including by way of Shareholder Owned Shares required under furnishing information or assistance) any credit facility in existence on the date hereof if such transferee agrees in writing inquiry, communication or proposal that constitutes, or could reasonably satisfactory be expected to the Parent to be bound and subject to the terms and provisions of this Agreementresult in, an Acquisition Proposal, (ii) Transfers enter into any agreement contemplating or otherwise relating to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementan Acquisition Proposal, (iii) Transfers provide any information or data to, or engage in, maintain or continue discussions or negotiations with, any Person in furtherance of any such inquiry, communication or proposal or otherwise relating to a third party if an Acquisition Proposal or for the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions purpose of this Agreementobtaining an Acquisition Proposal, and (iv) Transfers accept, agree to, endorse or recommend any Acquisition Proposal, or (v) release any third party from any standstill or confidentiality agreement, or waive or amend any provision thereof, to which it is a party; provided, that no Person shall be deemed to have provided any information or data to, or engaged in, maintained or continued discussions or negotiations with, any other Person in violation of this Section if such Person advises the Company other Person that they are precluded from taking any action that would constitute a violation of this Section. Seller shall notify Purchaser orally (within one Business Day) and in such amounts writing (as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (ivpromptly as practicable) of the immediately preceding sentence)all relevant details relating to, including in connection with a Shareholder Owned Shares Proposal and all material aspects of (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquirorPerson making such inquiry, the pricecommunication or proposal), all inquiries, communications and proposals which they or any of its or their Representatives may receive relating to any of such matters and, if such inquiry, communication or proposal is in written form or electronically or magnetically stored, shall deliver to Purchaser a copy of such inquiry, communication or proposal as promptly as practicable. Seller has terminated, and has used its best efforts to cause each of its Representatives to cease and terminate, any existing initiation, solicitation, encouragement, facilitation, communication, discussion or negotiation with any Person conducted heretofore by Seller, or any of its Representatives relating to any Acquisition Proposal. Seller shall promptly notify its Representatives of the date obligations undertaken in this Section and any violation of transferthe restrictions set forth in the two immediately preceding sentences by any Representative of Seller who takes any such prohibited action with the express or apparent encouragement or authority of Seller or with Seller's Knowledge, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees be deemed to be bound and subject to the terms and provisions a breach of this Agreement)Section by Seller.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Marketing Specialists Corp)
Standstill. For a period (a"Restricted Period") Each of the Shareholders hereby agrees that, from and after commencing on the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement and ending on the date which is five (5) years following the date of this Agreement, neither Buyer nor any of its affiliates nor any representatives shall, without the prior written consent of Seller or the Merger Agreementits Board of Directors:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(va) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of Seller (other than the Shares) or any subsidiary of Seller, or of any successor to or person in control of Seller, or any assets of the Company Seller or any subsidiary or division thereofof Seller or of any such successor or controlling person, except as provided in Section 4.5 and Section 1 of the Existing Stock Purchase Agreement;
(vib) make, or in any way participate inparticipation, directly or indirectly, in any “"solicitation” " of “"proxies” " to vote (as such terms are used in the rules of the Securities and Exchange Commission ("Commission) to vote")), or seek to advise or influence any Person person or entity with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementSeller;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiic) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition Seller or any of the Company’s its securities or assets;
(ixd) form, join or in any way participate in a “"group” (" as defined in Section 13(d)(3) under of the Exchange Act) 1934 Act (as defined below), in connection with any of the foregoing;.
(xe) seekotherwise act or seek to control the management, in any way which may be reasonably likely to require, involve the Board of Directors or trigger public disclosure policies of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;Seller; or
(xif) otherwise take, directly or indirectly, take any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which action that could reasonably be expected to have require Seller to make a public announcement regarding the effect possibility of preventing, impeding, interfering with or adversely affecting the consummation any of the transactions contemplated by events described in clauses (a) through (e) above. During the Merger AgreementRestricted Period, Buyer shall promptly advise Seller of any inquiry or proposal made to Buyer or any of its affiliates, directors, officers, employees, agents, advisors or other representatives, including the Mergerwithout limitation financial advisors, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement attorneys and accountants (each such Transfer, a "Permitted TransferRepresentatives"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementforegoing.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Softbank Holdings Inc Et Al)
Standstill. (a) Each of Seller and the Shareholders hereby agrees persons signing as Additional Signatories below, each individually and on its own behalf, agree that, from and after the date hereof until execution hereof, neither such Seller nor such Additional Signatory nor any of their respective Affiliates or Associates (as defined in the earlier Poison Pill) (the "Covered Persons") will, nor will they authorize or permit any of the Effective Time of the Merger and the termination of the Merger Agreement, their respective representatives in their capacity as such Shareholder shall not, directly or indirectly, unless to: (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, or become the Beneficial Owner of, any assets units or other interest in the Partnership or direct or indirect rights to acquire any units or other interest in the Partnership (including in all cases equity securities and securities convertible into equity securities); provided, however, that neither Sellers nor the Additional Signatories shall be in violation of this subclause (i) if a Covered Person acquired, offered to acquire or agreed to acquire, or became the Company Beneficial Owner of, units or any subsidiary other interests in the Partnership without the knowledge of Sellers or division thereof;
the Additional Signatories, as the case may be; provided further, however, that if Sellers or the Additional Signatories become aware of such acquisition, offer or agreement, Sellers or the Additional Signatories shall use reasonable best efforts to, or cause the Covered Persons to, sell, transfer or otherwise dispose of such units or other interest in the Partnership; (viii) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person person or entity with respect to the voting of, any voting securities of the Company units (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than the Units beneficially owned by Sellers immediately after the Closing) or other interest in the Partnership; provided, however, that neither Sellers nor the Additional Signatories shall be in violation of this subclause (ii) if a Covered Person discusses the Partnership or voting matters related to recommend that shareholders of any units or other interest in the Company vote in favor of the Merger and the Merger Agreement;
Partnership, (vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiiii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization, liquidation, dissolution or other extraordinary transaction of or involving an acquisition of units or other interest in the Company’s securities or assets;
Partnership, (ixiv) form, join or in any way participate in a “"group” " (as defined in Section 13(d)(3) under of the Securities Exchange ActAct of 1934) in connection with any units or other interest in the Partnership (other than to the extent it may be deemed to be part of a "group" with Purchaser by virtue of having entered into this Agreement or by virtue of the Units which will continue to be or were previously beneficially owned by Sellers), or (v) enter into any written arrangements, understandings or agreement with, or actively advise, assist or encourage, any persons in connection with any of the foregoing;
(x) seek; provided that the foregoing shall not limit the right of Sellers to prosecute, in its discretion and at its sole cost and expense, the existing litigation entitled Gotham Partners, L.P. v. Hallwood Realty Partners, et al. (Civ. Act. No. 15754N▇) ▇▇▇ ▇▇▇ ▇▇▇▇▇l therefrom. Irreparable harm shall be presumed if any way which may be reasonably likely to require, involve Person breaches any term or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amendedArticle VI. Accordingly, modified Sellers and the Additional Signatories agree that Purchaser shall be entitled to an injunction and other equitable relief, without posting any bond or waived;
(xi) otherwise takesecurity in connection therewith, directly or indirectly, any actions with to prevent the purpose of avoiding or circumventing any provision breach of this Section 3.1 or which could reasonably Article VI. The equitable remedies contemplated hereby shall not be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent deemed to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to exclusive remedies for a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination breach of this Agreement but shall be in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power addition to vote or direct the voting of, any additional shares of Company Common Stock or all other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in remedies available at law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each of During the Shareholders hereby agrees that, from and after period beginning on the date hereof until and ending on the earlier date that is the second anniversary of the Effective Time of Second Closing Date (the Merger and the termination of the Merger Agreement“Standstill Period”), such Shareholder shall not, directly or indirectly, unless (i) except as specifically requested by Parent or (ii) expressly contemplated permitted by the terms of this Agreement or the Merger Agreement:
, Sellers, Third Point and ▇▇. ▇▇▇▇ shall not, and shall cause each of their respective Affiliates (ias defined in Section 5.3) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect not to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets (i) Voting Securities (as defined in Section 5.3), or (ii) direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) any Voting Securities.
(b) During the Standstill Period, except upon the express prior written invitation of the Company Company, Sellers, Third Point and ▇▇. ▇▇▇▇ shall not, and shall cause each of their respective Affiliates not to, directly or any subsidiary indirectly, singly or division thereof;
as part of a partnership, limited partnership, syndicate or other group (vias those terms are used within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which meanings shall apply for all purposes of this Agreement): (i) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the rules Exchange Act) or exempt solicitation under Rule 14a-2(b)(1) or otherwise with respect to any Voting Securities (including by the execution of actions by written consent), become a “participant” or a “participant in a solicitation” (as such terms are defined or used in Regulation 14A under the Securities and Exchange CommissionAct) to vote, or seek to advise or influence any Person with respect to the voting of, Company or otherwise communicate with any voting securities stockholder of the Company pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; (including by making publicly known such Shareholder’s position on any matter presented to shareholders)ii) initiate, other than to recommend that shareholders propose or otherwise solicit, or participate in the solicitation of, stockholders for the approval of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit one or more stockholder proposals with respect to the Company Company, including any shareholder proposal under made pursuant to Rule 14a-8 under the Exchange Act;
(viii) , or encourage or induce any other individual or entity to initiate any stockholder proposal relating to the Company, or make any public announcement with respect to, demand or submit a proposal for, or offer of (with or without conditions) request for any extraordinary transaction involving an acquisition list of the Company’s securities or assets;
holders of Voting Securities; (ixiii) form, encourage the formation, join or in any way participate in a “group” which owns or seeks or offers to acquire beneficial ownership of Voting Securities or rights to acquire such securities (as defined other than Voting Securities beneficially owned by Sellers, Third Point or ▇▇. ▇▇▇▇ that are not Purchased Shares) or which seeks or offers to acquire control of the Company or influence its policies; (v) solicit, seek or offer to effect, negotiate with or provide any information to any party with respect to, make any statement or proposal, whether written or oral, either alone or in Section 13(d)(3) concert with others, to the board of directors of the Company, to any director or officer of the Company or to any other stockholder of the Company with respect to, or otherwise formulate any plan or proposal or make any public announcement, proposal, offer or filing under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding similar or circumventing any provision of this Section 3.1 successor statute or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Mergerotherwise, or such Shareholder’s ability take action to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request cause the Company to notify make any such filing, with respect to: (A) any form of business combination, restructuring, recapitalization, dissolution or similar transaction involving the Company or any Affiliate thereof, including, without limitation, a merger, tender or exchange offer, share repurchase or liquidation of the Company’s transfer agent that there is a stop transfer order with respect to all assets, (B) any acquisition or disposition of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect assets material to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock (C) any request to amend, waive or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to terminate the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock Agreement or voting interests shall automatically become subject to (D) any proposal or other statement inconsistent with the terms of this Agreement.
; (dvi) Prior to the termination of this Agreement in accordance with its termsotherwise act, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law alone or in equityconcert with others (including by providing financing for another party), to seek or offer to acquire control of the Company or influence, in any court manner, its management, board of directors or before policies; or (vii) assist or encourage any Governmentthird party, which alleges that the execution and delivery whether or not a “group” with such third party, to take any of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementactions enumerated in this Section 2.1(b).
Appears in 1 contract
Standstill. During the Restricted Period, Legion will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Each with respect to Company or the Voting Securities, (i) make, participate in or encourage any “solicitation” (as such term is used in the proxy rules of the Shareholders hereby agrees thatSEC, from and after the date hereof until the earlier including any solicitations of the Effective Time type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Merger and SEC) in any such solicitation of proxies or consents; (iii) seek to advise, encourage or influence any Person, or assist any Person in so encouraging, advising or influencing any Person, with respect to the termination giving or withholding of any proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Merger AgreementBoard’s recommendation in connection with such matter, such Shareholder shall notif applicable); or (iv) initiate, encourage or participate, directly or indirectly, unless in any “vote no,” “withhold” or similar campaign;
(b) initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) any stockholders of Company for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with respect to Company or the Voting Securities, (i) specifically requested by Parent communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) expressly contemplated by the terms participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of this Agreement “proxy access”; or the Merger Agreement:(iii) conduct any nonbinding referendum or hold a “stockholder forum”;
(i) sellseek, transferalone or in concert with others, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign election or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect appointment to, or consent torepresentation on, a Transfer the Board; (ii) nominate or propose the nomination of, or recommend the record nomination of, or beneficial ownership encourage any Person to nominate or both propose the nomination of or voting powerrecommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or encourage any Person to seek, the removal of any or all member of the Shareholder Owned SharesBoard;
(e) with respect to Company, (i) call or seek to call a special meeting of stockholders, or encourage any Person to call a special meeting of stockholders; (ii) enter into act or seek to act by written consent of stockholders; or (iii) make a request for any voting agreement, proxy, consent stockholder list or power of attorney other records;
(f) other than solely with other Restricted Persons with respect toto Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Shareholder Owned SharesBoard);
(iiii) enter into make any short sale offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Common Stock acquisition by any Third Party (as defined below) of more than 50 percent of Company’s common stock or all or substantially identical property all of Company’s assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or enter into proposal (with or acquire an offsetting derivative contract without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) except with respect to any Extraordinary Transaction that has not been approved by the Shareholder Owned Shares Legion Designee in such person’s capacity as a member of the Board, publicly comment on any Extraordinary Transaction or substantially identical propertyproposal regarding any Extraordinary Transaction (it being understood that this clause (g) will not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, encourage, threaten, assist or join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation primarily to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) transfer exercising statutory appraisal rights; (v) responding to or complying with a validly issued legal process; or (vi) bringing litigation against any of the economic interest such person in the Shareholder Owned Shares or enter into any transaction that has case of fraud by such effectperson;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) acquire, offer causing a class of securities of Company to acquirebe delisted from, or agree to acquire, directly or indirectly, by purchase or otherwisecease to be authorized to be quoted on, any assets of the Company securities exchange; or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” causing a class of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than become eligible for termination of registration pursuant to recommend that shareholders Section 12(g)(4) of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiij) make any other than through non-public announcement communications with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could Company that would not reasonably be expected to have the effect of preventingresult in or involve public disclosure obligations for any Party, impeding, interfering with make any request or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, submit any proposal to amend or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to waive the terms of this Agreement.;
(di) Prior compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities; or (ii) have any other agreement, arrangement or understanding, whether written or oral, with any person related to his or her service as a director of Company, except for customary indemnification obligations to the termination Legion Designee in their capacity as an employee of a member of the Legion Group as disclosed in writing to Company prior to the date of this Agreement Agreement;
(l) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(m) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in accordance the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Legion Group beneficially owning, more than 9.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Legion Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities); or
(n) other than through open market sale transactions where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, the securities of Company to any Third Party that, to the knowledge of any Legion Signatory (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its termsAffiliates and Associates, each Shareholder agrees owning, controlling or otherwise having any beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial ownership of any Third Party who, together with its Affiliates and Associates, has beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (n) will not bringapply to any Third Party that is a Schedule 13G filer and is a mutual fund, commencepension fund, instituteindex fund or investment fund manager with no known history of activism or known plans to engage in activism). Notwithstanding anything set forth in this Agreement to the contrary, maintainnothing in this Agreement will be deemed to prevent any member of the Legion Group from (i) communicating privately with the Board or Company’s chief executive officer or chief financial officer regarding any matter, prosecuteso long as such communications are not intended to, join and would not reasonably be expected to, require Company or voluntarily aid any Action member of the Legion Group to make public disclosure with respect thereto; (ii) communicating privately with stockholders of Company, but only so long as such communications do not violate any provision of this Agreement; (iii) identifying potential director candidates to serve on the Board or retaining advisors, including public relations or proxy solicitation firms, so long as such actions do not create a public disclosure obligation for the Legion Group or Company, are not publicly disclosed by the Legion Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in law any member of the Legion Group or any of their Affiliates or prospective investors in equityany member of the Legion Group or any of their Affiliates, but only if such communications are (1) not made with an intent to circumvent or violate any of the restrictions set forth in paragraph 11, (2) based on publicly available information and (3) not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) making any statement in response to any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes in connection with any lawsuit, action, suit, claim or other proceeding before any court or before any Governmentthat Legion reasonably believes, which alleges that the execution and delivery of the Merger Agreement after consultation with outside counsel, to be legally required by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementapplicable law.
Appears in 1 contract
Sources: Board Representation Agreement (Momentive Global Inc.)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder 7.1.1 Aegon shall not, and shall procure that its Affiliates and its other Representatives acting on its or any of its Affiliates’ behalf shall not, without the prior written consent of ASR, directly or indirectly, unless either alone or together with another Person (i) specifically requested by Parent or (ii) expressly contemplated by such obligations, the terms of this Agreement or the Merger Agreement:“Standstill”):
(ia) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign other than in the ordinary course of business (including as an investment advisor or otherwise dispose through M&A transactions for other business reasons than the acquisition of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”Relevant Securities), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, any 690 Aegon Annual Report on Form 20-F 2022 Exhibit 4.4 shares or other securities issued by purchase or otherwise, any assets of the Company ASR or any subsidiary voting rights attached to such shares or division thereofsecurities (the “Relevant Securities”);
(vib) makemake or announce, or in cause, assist, advise or coordinate with another Person to make or announce, a public offer for any way participate inRelevant Securities, or enter into an agreement or arrangement or do or omit to do any act as a result of which it or another Person may become obliged to make or announce a public offer for any Relevant Securities;
(c) propose to enter into, directly or indirectly, any “solicitation” merger or business combination involving ASR or any of “proxies” (as such terms are used in the rules its Affiliates or to purchase, directly or indirectly, a material portion of the Securities and Exchange Commission) to vote, assets of ASR or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Affiliates;
(viid) submit other than in accordance with the terms of this Agreement, otherwise act, alone or in concert with others, to seek control or influence over the Company any shareholder proposal under Rule 14a-8 under the Exchange Actmanagement, Executive Board, Supervisory Board or policies of ASR;
(viiie) make disclose any public announcement with respect tointention, plan or submit a proposal forarrangement that, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of when realised, would violate the Company’s securities or assets;prohibitions set out in the foregoing; or
(ixf) formadvise, join assist or in encourage any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) Person in connection with any of the foregoing;.
7.1.2 The restrictions in Clause 7.1.1 shall cease to apply at the later of:
(xa) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
five (xi5) otherwise take, directly or indirectly, any actions with years after the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).Closing Date; or
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement plus three (3) years thereafter.
7.1.3 If ASR intends to propose a resolution to the General Meeting providing for a capital reduction as a result of which Aegon would come to hold such a percentage of the Ordinary Shares that it would become obligated to make a Mandatory Offer, ASR shall inform Aegon in accordance with its termswriting at least twenty (20) Business Days before proposing such resolution to the General Meeting, in order to enable Aegon to take such measures as are required for it to avoid having to make such Mandatory Offer.
7.1.4 For the event that a Shareholder acquires record or beneficial ownership ofduration of the Standstill, or the power to vote or direct the voting ofin case of any share buy-back program initiated by ASR, any additional shares of Company Common Stock or other voting interests with respect Aegon shall participate in such share buy-back program to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject extent required to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees avoid that it will not bringhold or beneficially own (directly or indirectly) thirty percent (30%) or more of ASR’s issued and outstanding Ordinary Shares as a result of such share buy-back program.
7.1.5 If, commencefor whatever reason, instituteAegon will come to hold or beneficially own (directly or indirectly) thirty percent (30%) or more of ASR’s issued and outstanding Ordinary Shares, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges Aegon shall procure that the execution it and/or its Affiliates will dispose of such Aegon Annual Report on Form 20-F 2022 | 691 About Aegon Governance and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.risk management Financial information Non-financial information
Appears in 1 contract
Standstill. (a) Each During the period that both of the Shareholders hereby agrees thatTelehandler Agreements are in effect and for a period of seven (7) years thereafter, from and after neither the date hereof until the earlier Shareholder nor any of its Representatives (as defined herein) (acting on behalf of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notShareholder) will, directly or indirectly, unless (i) specifically requested by Parent without the prior written consent of the Company or (ii) expressly contemplated by the terms its Board of this Agreement or the Merger AgreementDirectors:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(va) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, ownership (including without limitation “beneficial ownership” as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of any additional (i.e., in addition to the Shares) Voting Securities (as defined herein) or direct or indirect rights to acquire any additional Voting Securities of the Company or any subsidiary or affiliate thereof, or of any successor to or person in control of the Company, or any assets of the Company or any subsidiary subsidiary, division or division thereofaffiliate thereof or of any such successor or controlling person; provided, however, that the foregoing shall not prohibit the Shareholder from acquiring additional Voting Securities of the Company as a result of a pro rata dividend paid by the Company with respect to the Shares;
(vib) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission) to voteSEC), or otherwise seek to advise or influence any Person person or entity with respect to the voting of any Voting Securities of the Company;
(c) (i) take any action to solicit, initiate or encourage any inquiries or the making or implementation of any proposal or offer with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, any voting securities of the Company or any subsidiary or affiliate thereof (including by making publicly known such Shareholder’s position on any matter presented to shareholdersa “Company Acquisition Proposal”), other than the transactions contemplated by this Agreement, (ii) agree to recommend that shareholders endorse any Company Acquisition Proposal, or (iii) engage in negotiations with, or disclose any nonpublic information relating to the Company or any subsidiary or affiliate thereof or afford access to the properties, books or records of the Company vote in favor of or any subsidiary or affiliate thereof to, any person that the Merger and the Merger AgreementShareholder believes may be considering making, or has made, a Company Acquisition Proposal;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixd) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under of the Securities Exchange Act) Act of 1934, as amended, in connection with any of the foregoing;
(xe) seekotherwise act, alone or in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Lawconcert with others, to have seek to control or influence the management, Board of Directors or policies of the Company;
(f) disclose any intention, plan or arrangement inconsistent with the foregoing;
(g) advise, assist or encourage any other persons in connection with any of the foregoing;
(h) take any action which might require the Company to make a public announcement regarding the possibility of an extraordinary transaction involving the Company or any of its securities or assets;
(i) file any application with any regulatory authority seeking approval or authority in connection with any action described above; or
(j) request the Company, its Board of Directors or any of their Representatives, directly or indirectly, to amend or waive any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement6. Notwithstanding the foregoing, nothing in this Section 6 shall prohibit the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control Representative of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions who is elected as a director of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions Section 7 hereof from fulfilling his fiduciary obligations as a member of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all Board of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned SharesDirectors.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Shareholder Agreement (Gehl Co)
Standstill. (a) Each Section 4.01 Until the date that is the fifth anniversary of the Shareholders hereby date of this Agreement, the Stockholder agrees that, from and after unless specifically invited in writing by the date hereof until Company or consented to in writing by the earlier of Company in response to a confidential written request by the Effective Time of Stockholder, the Merger and the termination of the Merger Agreement, such Shareholder shall notStockholder will not in any manner, directly or indirectly:
(a) effect or seek, unless offer or propose (iwhether publicly or otherwise) specifically requested by Parent to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any material portion of the assets, indebtedness or businesses of the Company or any of its Subsidiaries, (ii) expressly contemplated by the terms of this Agreement any tender or the Merger Agreement:
(i) sellexchange offer, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option merger or other agreement with respect tobusiness combination involving the Company, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares Subsidiaries or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or the Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, (3) any subsidiary recapitalization, restructuring, liquidation, dissolution or division thereof;
(vi) makeother extraordinary transaction with respect to the Company or any of its Subsidiaries, or in any way participate in, directly or indirectly, (4) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents to vote, or seek to advise or influence any Person with respect to the voting of, vote any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) with respect to the Company or otherwise act in connection concert with any person in respect of any such securities;
(c) otherwise act, alone or in concert with others, to seek representation on or to control the management, the Board, or policies of the Company or to obtain representation on the Board;
(d) take any action which would, or would reasonably be expected to, force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above;
(e) disclose any intention, plan or arrangement inconsistent with the foregoing;
(xf) seekenter into any discussions, in negotiations, understandings or arrangements with any way which may be reasonably likely third party with respect to require, involve or trigger public disclosure any of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;the foregoing; or
(xig) otherwise takepublicly request that the Company, directly or indirectly, any actions with the purpose of avoiding amend or circumventing waive any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer paragraph (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreementsentence).
Section 4.02 The restrictions set forth in Section 4.01 shall be inoperative and of no force or effect upon the first to occur of any of (a) any Termination Event or (b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits first day on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company which Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth is no longer listed on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board NASDAQ or any member thereof or which otherwise challenges the Merger Agreementother U.S. securities exchange.
Appears in 1 contract
Standstill. (a) Each As of the Shareholders date hereof, you hereby agrees represent and warrant to the Company that you do not have beneficial ownership of any securities of New Home. You agree that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger AgreementStandstill Period (as hereinafter defined), unless specifically invited in writing by the Board of Directors of New Home, neither you nor any of your affiliates (to the extent that any such Shareholder shall notaffiliates have received or been provided Confidential Information) will in any manner, directly or indirectly, unless (i) specifically requested by Parent effect or (ii) expressly contemplated by the terms of this Agreement seek, offer or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) to effect, or announce any intention to effect or cause or participate in:
a) any acquisition of more than 3% of any voting securities (collectively, a “Transfer”or beneficial ownership thereof), or enter into rights or options to acquire more than 3% of any contract, option or other agreement with respect to, or consent to, a Transfer of, the record voting securities (or beneficial ownership or both or voting power, thereof) of any or all of the Shareholder Owned SharesNew Home;
(iib) enter into any voting agreementtender or exchange offer, proxy, consent merger or power other business combination involving New Home or any material assets of attorney with respect to, or deposit into a voting trust, the Shareholder Owned SharesNew Home;
(iiic) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;New Home,
(ivd) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to votevote any voting securities of New Home;
e) any action, whether alone or in concert with others, to seek or obtain representation on or to control or influence the management, the Board of Directors or the policies of New Home, to seek to advise or influence any Person person with respect to the voting of, of any voting securities of New Home or to obtain representation on the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders Board of the Company vote in favor Directors of the Merger and the Merger AgreementNew Home;
(viif) submit to the Company entry into any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect todiscussions or arrangements with, or submit a proposal forany action to advise, assist, facilitate or encourage any third party, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ix) action to form, join or in any way participate in a “group” (as defined group or otherwise act in Section 13(d)(3) under the Exchange Act) concert with any person, in connection each case, with respect to any of the foregoing;; or
(xg) seek, in any way action which may be reasonably likely to require, involve would or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could would reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation force New Home to make a public announcement regarding any of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding types of matters set forth in the foregoing, the following Transfers are expressly permitted under . The restrictions contained in this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory Section 6 shall not apply to the Parent to be bound bor,afide private negotiations between you and/or your affiliates and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the CompanyPossible Transaction as contemplated by this letter agreement, provided that such Shareholder negotiations would not reasonably be expected to require the Company or you to make any public disclosure in connection therewith. For purposes of this Section 6, the “Standstill Period” shall notify Parent promptly mean the earlier of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action (i) twelve (12) months from the date hereof; (ii) the closing of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock Possible Transaction; (iii) New Home’s bankruptcy or voting interests shall automatically become subject to the terms of this Agreement.
(div) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution of a final definitive agreement between New Home and delivery any person or group other than you or your affiliates, providing for (a) any acquisition of at least a majority of the Merger Agreement by the Companyvoting securities of New Home, or the approval (b) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction, pursuant to which such person or group will beneficially own at least a majority of the Merger Agreement outstanding voting power of New Home or its successor. Nothing contained in this Section 6 shall preclude you and your affiliated funds from offering to provide or providing financing to any potential third party investor or purchaser in a process approved by the Company BoardNew Home, breaches any fiduciary duty of the Company Board or any member thereof or which provided that you do not otherwise challenges the Merger Agreementviolate your obligations as to confidentiality hereunder.
Appears in 1 contract
Sources: Confidentiality Agreement (Apollo Management IX, L.P.)
Standstill. The Investor Parties agree that until the later of (ai) Each 90 days after the first day on which no Investor Designee serves on the Board and the Investor has no rights (or has irrevocably waived its right) under Section 5.10 (except for Section 5.10(f)) and (ii) the expiration of the Shareholders hereby agrees thatLock-Up Period (the “Standstill Expiration Date”), from and after without the date hereof until the earlier prior written approval of the Effective Time of Board, the Merger and the termination of the Merger Agreement, such Shareholder shall Investor Parties will not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementand will cause their Affiliates not to:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(va) acquire, offer or seek to acquire, or agree to acquire or make a proposal to acquire, directly or indirectly, by purchase or otherwise, any assets equity securities or direct or indirect rights to acquire any equity securities of the Company Company, any securities convertible into or exchangeable for any subsidiary such equity securities, any options or division thereofother derivative securities or contracts or instruments in any way related to the price of shares of Common Stock (solely to the extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the aggregate, greater than 15% of the then outstanding Common Stock (which calculation shall, for the avoidance of doubt, include the notional or other number of shares of Common Stock specified in the documentation for any Contract to which any of the Investor Parties are party which is designed to produce economic benefits and risks to any of the Investor Parties 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));
(vib) make, make or in any way encourage or participate in, directly or indirectly, 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 Securities and Exchange Commission) SEC, to vote, or knowingly seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on or any matter presented of its Subsidiaries, or call or seek to shareholders), other than to recommend that shareholders call a meeting of the Company vote in favor 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 Merger and the Merger AgreementBoard;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiic) make any public announcement with respect to, or submit a proposal foroffer, seek, propose or offer of indicate an interest in (in each case with or without conditions) ), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities of the Company or any Subsidiary of the Company, or any other extraordinary transaction involving an acquisition the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(d) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, board of directors or policies of the Company or any of its Subsidiaries;
(e) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, 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 would require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.07;
(h) enter into any agreements, arrangements or understandings with any third party (including security holders of the Company’s securities or assets;
(ix, but excluding, for the avoidance of doubt, any Investor Parties) formwith respect to any of the foregoing, join including forming, joining or in any way participate participating in a “group” (as defined in Section 13(d)(3) under of the Exchange Act) with any third party in connection with any of the foregoing;
(xi) seekrequest the Company or any of its Representatives, in any way which may be reasonably likely to require, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend or waive any provision of this Section 3.1 amended5.07; 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, modified which the Company may accept or waived;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
(xij) otherwise takecontest the validity of this Section 5.07 or make, directly initiate, take or indirectlyparticipate in any demand, any actions with the purpose of avoiding Action (legal or circumventing otherwise) or proposal to amend, waive or terminate any provision of this Section 3.1 5.07; provided, however, that nothing in this Section 5.07 will (1) limit the Investor Parties’ ability to vote, Transfer or which could reasonably be expected Hedge (subject to have the effect Section 5.08), convert shares of preventing, impeding, interfering with or adversely affecting the consummation Series B Preferred Stock into Common Stock (subject to Section 6 of the transactions contemplated by the Merger AgreementSeries B Certificate of Designations), including the Merger, limit or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under restrict any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers transfer pursuant to a family member Permitted Loan or any foreclosure thereunder or transfer in lieu of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound foreclosure thereunder, privately make and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers submit to the Company and/or the Board any proposal that is intended by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expect to require public disclosure by any Person), participate in such amounts as are necessary rights offerings made by the Company to satisfy the withholding taxes due in all holders of its Common Stock, receive any dividends or similar distributions with respect of settlement of stock options or stock grants. In the event that to any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) securities of the immediately preceding sentence)Company held by the Investor Parties, including in connection with a Shareholder Owned Shares Proposal tender shares of Common Stock or Series B Preferred Stock into any tender or exchange offer (subject to compliance with Section 3.3(b)5.08), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of effect an adjustment to the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required Conversion Rate pursuant to the terms hereof, an agreement in writing reasonably satisfactory to Series B Certificate of Designations or otherwise exercise rights under its Common Stock or Series B Preferred Stock that are not the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
Section 5.07, (b2) Any Transfer in violation limit the ability of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power Investor Director to vote or direct the voting of, any additional shares of Company Common Stock otherwise exercise his or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock her legal duties or voting interests shall, without further action otherwise act in his or her capacity as a member of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof (3) apply to or which otherwise challenges restrict the Merger AgreementWella Sale.
Appears in 1 contract
Sources: Investment Agreement (Coty Inc.)
Standstill. Except as otherwise provided in this Agreement, without the prior written consent of the Board, the Stockholders shall not, and shall instruct their Affiliates, not to, directly or indirectly (in each case, except as permitted by this Agreement):
(a) Each (i) acquire, offer or agree to acquire, or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notCompany generally on a pro rata basis), directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by mergerpurchase, operation tender or exchange offer, through the acquisition of Law control of another person, by joining a group, through swap or hedging transactions or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, or other beneficial ownership interest in, more than 17.5% of the then-outstanding shares of the Common Stock in the aggregate; or (including by making publicly known such Shareholder’s position on any matter presented to shareholders), ii) other than in open market sale transactions where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, knowingly sell, offer or agree to recommend that shareholders sell, through swap or hedging transactions or otherwise, the voting securities of the Company vote in favor or any voting rights decoupled from the underlying voting securities held by the Stockholders to any Third Party that has, or would have as a result of such transaction, a beneficial ownership interest of 5.0% or more of the Merger and the Merger Agreementthen-outstanding shares of Common Stock;
(viib) (i) nominate or publicly 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 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 the Company any shareholder proposal under Rule 14a-8 under the Exchange ActStockholder Meeting;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixc) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) under any group or agreement of any kind with respect to any voting securities of the Exchange Act) Company in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with the Stockholders or one or more of their Affiliates that agree to be bound by the terms and conditions of this Agreement);
(d) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, arrangement or agreement solely among the Stockholders and their Affiliates and otherwise in accordance with this Agreement);
(e) seek publicly, alone or in concert with others, to amend any provision of the Company’s articles of incorporation or bylaws;
(f) demand an inspection of the Company’s books and records;
(g) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any (i) material acquisition of any securities, or any material assets or businesses, of the Company or any of its subsidiaries; (ii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses (each, an “Extraordinary Transaction”);
(h) enter into any discussions, negotiations, 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 with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;
(xi) seek, publicly make or in any way which may be reasonably likely to requireadvance publicly any request or proposal that the Company or the Board amend, involve modify or trigger public disclosure of such request pursuant to applicable Law, to have waive any provision of this Section 3.1 amended, modified or waived;Agreement; or
(xij) otherwise take, directly take any action challenging the validity or indirectly, any actions with the purpose of avoiding or circumventing any provision enforceability of this Section 3.1 3 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Nothing in Section 3 shall be deemed to (i) a pledge of Shareholder Owned Shares required under prohibit the Stockholders or their Affiliates from communicating privately with the Company’s directors, officers, and Representatives so long as such private communications would not be reasonably determined to trigger public disclosure obligations for any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, party; (ii) Transfers to limit the exercise in good faith by the Designee of her or his fiduciary duties solely in her or his capacity as a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control director of the Shareholder Owned Shares so Transferred Company; or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if prevent the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers Stockholders from making any private statement to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and an Extraordinary Transaction that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement is publicly announced by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreementa Third Party.
Appears in 1 contract
Sources: Board Representation and Standstill Agreement (Stratus Properties Inc)
Standstill. (a) Each of Stockholder shall not, during the Shareholders hereby agrees that, from period commencing on the Closing Date and after the date hereof continuing until the earlier of (1) 120 days after the Effective Time Closing Date and (2) the date such Stockholder ceases to own any Holdco Common Stock (such period, the “Standstill Period”), unless such action has been specifically invited in writing by the Holdco Board (it being understood that execution of the Merger this Agreement by Parent or Holdco does not constitute such an invitation), and the termination of the Merger Agreement, such Shareholder shall notStockholder will direct its Representatives not to, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(ia) selleffect or seek, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign offer or propose (whether publicly or otherwise dispose of (and whether by merger, operation of Law or otherwisenot subject to conditions) (collectively, a “Transfer”)to effect or seek, or enter into announce any contractintention to effect or seek, option or cause or otherwise participate in:
i. any acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other agreement right with respect to, any Holdco Common Stock;
ii. any tender or consent toexchange offer, consolidation, acquisition, merger, joint venture, business combination or extraordinary transaction involving Holdco or any of its Subsidiaries or all or a Transfer of, material portion of the record assets of Holdco or beneficial ownership any of its Subsidiaries (except that any Stockholder or both its Representatives may affect or voting power, pursue an acquisition of any assets offered for sale by Holdco or all any of the Shareholder Owned Sharesits Subsidiaries);
(ii) enter into iii. any voting agreementrecapitalization, proxyrestructuring, consent liquidation, dissolution or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale other extraordinary transaction with respect to the Common Stock Holdco or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;its Subsidiaries; or
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, iv. any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the rules SEC) or consents to vote any voting securities of the Securities and Exchange Commission) to voteHoldco or any of its Subsidiaries from any holder of any voting securities of Holdco or any of its Subsidiaries, or seek to advise otherwise advise, assist or influence encourage any Person with respect to the voting of, of any voting securities of the Company (including by making publicly known such Shareholder’s position on Holdco or any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits Subsidiaries;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (as defined in Section 13(d)(3within the meaning of Rule 13d-5(b)(l) promulgated under the Exchange Act) with respect to any voting or other securities of Holdco or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Holdco or any of its Subsidiaries or otherwise act in connection concert with any Holdco in respect of any such securities;
(c) call, request, or seek to have called any meeting of the stockholders of Holdco or execute any written consent in lieu of a meeting of holders of any securities of Holdco;
(d) advise, assist, or knowingly encourage, or direct any Person to advise, assist or knowingly encourage any other persons with respect to any of the foregoing;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of conduct prohibited by this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement3. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): parties agree and acknowledge that (i) each Stockholder may vote its shares of Holdco Common Stock at any meeting of holders of Holdco Common Stock in its sole discretion and (ii) any Stockholder may coordinate any such vote with, act in concert with, and be part of a pledge “group” with, any other Holdco stockholder that is an Affiliate of Shareholder Owned Shares required under such Stockholder (iii) each Stockholder may participate as a seller in any credit facility tender or exchange offer commenced by a third party (for the avoidance of doubt, not in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions violation of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, by Holdco and (iv) Transfers this Section 3 will only apply to (A) the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer Stockholders and (other than a Permitted Transfer described in clause (ivB) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required their permitted transferees pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(bSection 2(b)(ii) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares respect of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held Locked Up Securities owned by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreementpermitted transferees.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) Each acquire or offer to acquire, seek, propose or agree to acquire, by means of the Shareholders hereby agrees thata repurchase, from and after the date hereof until the earlier tender or exchange offer, business combination or in any other manner, beneficial ownership of the Effective Time five percent (5%) or more of the Merger and the termination any securities or assets of the Merger Agreement, such Shareholder shall notIsilon (including any securities or assets of Isilon that you or any of your controlled affiliates already, directly or indirectly, unless (iown) specifically requested by Parent including, without limitation, rights or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Sharesoptions to acquire such ownership;
(iib) enter into any voting agreementseek or propose to influence, proxyadvise, consent change or power control the management, Board of attorney with respect toDirectors, governance or deposit into a voting trustcertificate of incorporation or bylaws, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquireincluding, offer to acquire, or agree to acquire, directly or indirectlywithout limitation, by purchase or otherwise, any assets means of the Company or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” a solicitation of “proxies” proxies (as such terms are used defined in the rules Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Securities Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and Exchange Commissionincluding any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to voteinfluence, or seek to advise or influence direct the vote of any Person holder of securities of Isilon;
(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to the voting of, Isilon or any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreementits subsidiaries or businesses;
(viid) submit make any request to the Company amend or waive this provision or any shareholder proposal under Rule 14a-8 under the Exchange Actother provision of this paragraph (9);
(viiie) make any public announcement disclosure, or take any action which would reasonably be expected to require Isilon to make any public disclosure, with respect to, or submit a proposal for, or offer of (with or without conditions) to any extraordinary transaction involving an acquisition of the Company’s securities or assets;matters set forth in this Agreement; or
(ixf) formenter into any discussions (excluding discussions with your Representatives), join arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) l3D Group in connection with any of the foregoing;
(x) seek. Confidentiality Agreement August 29, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. 2010 Notwithstanding the foregoing, the following Transfers are expressly permitted under restrictions set forth in this Agreement paragraph (each such Transfer, a "Permitted Transfer"): 9) including (a-f) (i) shall not restrict you from making at any time a pledge non-public offer or proposal to the Board of Shareholder Owned Shares required under Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any credit facility way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in existence on this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof if Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such transferee agrees in writing reasonably satisfactory third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the Parent to be bound and subject to consummation of such transaction holding (as a group) less than a majority of the terms and provisions voting securities of this Agreement, (ii) Transfers to a family member of a Shareholder the surviving or resulting entity in such transaction (or to its ultimate parent) immediately after the consummation of such transaction, or (2) a trust for the benefit sale of a family member) all or to a charitable organization if (x) the Shareholder retains voting control substantially all of the Shareholder Owned Shares so Transferred its assets, or (y) such transferee agrees in writing reasonably satisfactory to at any time after the Parent to date hereof there shall be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to pending a third party if the transferee agrees in writing reasonably satisfactory tender or exchange offer by any third party to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects acquire a Permitted Transfer (other than a Permitted Transfer described in clause (iv) majority of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent equity or voting securities of the consummation of such Permitted Transfer Isilon and the material details thereof, including the identity Board of the acquiror, the price, and the date Directors of transfer, and Isilon shall provide evidence reasonably satisfactory have failed to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent recommend that the transferee agrees to be bound and subject to stockholders of Isilon reject such tender or exchange offer in the terms and provisions of this AgreementSchedule 14D-9 related thereto (or any amendment thereof).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Confidentiality Agreement (Emc Corp)
Standstill. (a) Each 3.1 As of the Shareholders hereby agrees thatdate of this Agreement, from and after except as previously disclosed in writing to the Company, if any, each Investor represents that neither it nor any of the members of its applicable Investor Group (excluding the Core Deal Team in any individual capacity) beneficially owns any Common Shares or other securities entitled to be voted generally in the election of the Company Board or any direct or indirect options or other rights to acquire, or securities or other instruments that are convertible into, any such securities (collectively, “Securities”).
3.2 Other than as set forth herein, during the period commencing on the date hereof until and ending on March 31, 2020 (the earlier “Standstill Period”), no Investor will, and each Investor will cause its applicable members of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notits Investor Group not to, directly or indirectly, singly or with any other person (including any other Investor), unless (i) specifically requested by Parent or (ii) expressly contemplated invited in writing by the terms of this Agreement or the Merger AgreementCompany Board to take such action:
(ia) sellacquire beneficial ownership of any Securities, transfer, or make a tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option exchange or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of offer to acquire any or all of the Shareholder Owned SharesSecurities;
(iib) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) its Securities, make, engage or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are term is used in the proxy rules of the Securities and Exchange CommissionSEC) of proxies or consents (whether or not relating to votethe election or removal of directors), or seek to advise or influence any third Person with respect to the voting of, of any voting securities Securities;
(c) call or seek to have called any meeting of the stockholders of the Company, propose or nominate for election to the Company Board any Person or cause any of its Securities to be voted in favor of any Person whose nomination has not been approved by the Company Board;
(including by making publicly known d) initiate, propose or otherwise “solicit” (as such Shareholder’s position on any matter presented to shareholders), other than to recommend that term is used in the proxy rules of the SEC) shareholders of the Company vote in favor for the approval of shareholder proposals made to the Merger and Company, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Merger AgreementExchange Act or otherwise, or cause or encourage or attempt to cause or encourage any other person to initiate any such shareholder proposal, regardless of its purpose;
(viie) submit deposit any Securities in a voting trust or subject any Securities to any arrangement or agreement with respect to the voting of such Securities;
(f) propose or publicly announce or otherwise publicly disclose an intent to engage in any form of business combination, acquisition, Change of Control transaction or similar transaction relating to the Company or any shareholder proposal under Rule 14a-8 under the Exchange Actof its subsidiaries;
(viiig) make (i) act in concert with others (including any public announcement THL Investor, in the case of a GS Investor, or any GS Investor, in the case of a THL Investor) to take any action in clauses (a) through (f) above or to form a group with others with respect toto any Securities or (ii) enter into discussions, negotiations, arrangements or agreements with others (including any THL Investor, in the case of a GS Investor, or submit any GS Investor, in the case of a proposal for, or offer of THL Investor) relating to the actions referred to in clauses (with or without conditionsa) any extraordinary transaction involving an acquisition of the Company’s securities or assets;through (f) above; or
(ixh) form, join or in take any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(x) seek, in any way action which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could would reasonably be expected to have require the effect Company to make a public announcement in respect of preventingany matter contemplated by this Section 3.2.
3.3 Notwithstanding anything in Section 3.2 to the contrary, impedingthe restrictions set forth in Section 3.2 will not apply, interfering solely to the extent necessary to facilitate a public or private offer by an Investor to enter into a Change of Control transaction, upon the earlier to occur of (a) the public announcement by the Company of its entry into a definitive agreement providing for a Change of Control and (b) as long as such Investor has not violated Section 3.2 with respect to such third Person, the public announcement by a third Person of any tender, exchange or adversely affecting other offer or proposal the consummation of which would result in a Change of Control (an “Acquisition Proposal”); provided, however, that if any of the transactions contemplated by referred to in (a) or (b) terminates and the Merger AgreementCompany has not made a public announcement of its intent to solicit or engage in a transaction (or has announced its decision to discontinue pursuing such a transaction) the consummation of which would result in a Change of Control, including then the Mergerrestrictions contained in Section 3.2 will again be applicable (for the avoidance of doubt prior to March 31, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound 2020 and subject to the terms foregoing clauses (a) and provisions of (b)). Nothing in this Agreement, (ii) Transfers to Section 3 will preclude an Investor from submitting a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory confidential proposal to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty Chairman of the Company Board or any member thereof or which otherwise challenges for a potential Change of Control transaction as long as such confidential proposal is made in a manner that would not reasonably be expected to require the Merger AgreementCompany to make a public announcement regarding such confidential proposal.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby Investor agrees that, except as expressly permitted elsewhere in this Agreement or as set forth on Schedule 4(a) hereto, from and after the date hereof Effective Date until the earlier Termination Date, without the prior written approval of the Effective Time Board, neither it nor any of the Merger and the termination its controlled Affiliates nor any of the Merger Agreement, such Shareholder shall notits Associates shall, directly or indirectly, unless (i) specifically requested by Parent alone or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementin concert with others, in any manner:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign propose or publicly announce or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), disclose an intent to propose or enter into or agree to enter into, singly or with any contractother person, option directly or indirectly, (A) any form of business combination or acquisition or other agreement transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect toto the Company or any of its subsidiaries, or consent to(C) any form of tender or exchange offer for the Common Stock or the Series A Preferred Shares, whether or not such transaction involves a Transfer of, the record or beneficial ownership or both or voting power, Change of any or all Control of the Shareholder Owned SharesCompany;
(ii) enter into engage in any solicitation of proxies or written consents to vote any voting agreementsecurities of the Company, proxy, consent or power of attorney conduct any non-binding referendum with respect toto any voting securities of the Company, or deposit into knowingly encourage, assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to any voting securities of the Company, or otherwise become a voting trust“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 Shareholder Owned Shares;Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board; 10|
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer offer, or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any (A) interests in any of the Company’s indebtedness, or (B) Common Stock, Series A Preferred Shares, or other equity interests in the Company (including any rights decoupled from the underlying securities of the Company, but excluding Common Stock issued in connection with a stock split, stock dividend or similar corporate action initiated by the Company with respect to any securities beneficially owned by any of the Investors and/or any Affiliate or Associate thereof) representing in the aggregate (amongst all of the Investors and any Affiliate or Associate thereof) in excess of 14.54% of the shares of Common Stock and Series A Preferred Shares outstanding (on an as converted to common basis), provided, however, any purchases pursuant to Section 2(l) hereof shall be excluded from the limitations provided herein;
(iv) 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 subsidiary rights or division thereofoptions to acquire any such assets or business from any person, in each case other than securities of the Company;
(v) seek to advise, encourage, support or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner consistent with Section 3;
(vi) makeengage in (A) any short sale or (B) any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or in any way participate inother similar right (including, directly or indirectlywithout limitation, any put or call option or “solicitationswap” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commissiontransaction) to vote, or seek to advise or influence any Person with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the voting of, any voting market price or value of the securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger AgreementCompany;
(vii) submit intentionally pledge, hypothecate, or put any liens against the Company’s capital stock; provided, however, nothing herein shall prevent any Investor from partaking in customary margin transactions with a broker regulated by FINRA or holding its securities of the Company in a margin account;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing, or influencing the Board or management of the Company or its subsidiaries, including any plans or proposals to change the number or term of directors, to elect directors, to fill any vacancies on the Board, or to remove directors, (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company or its subsidiaries, (C) any other material change in the Company’s management, business, or corporate or governance structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, operations, business, corporate strategy, corporate structure, capital structure or allocation, share repurchase or dividend policies or other actions that may impede or facilitate the acquisition of control of the Company by any shareholder proposal under person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to 11| become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case except as permitted expressly by this Agreement;
(ix) initiate, propose, or otherwise “solicit” stockholders of the Company for the approval of any stockholder proposals (whether pursuant to Rule 14a-8 under the Exchange ActAct or otherwise) other than in accordance with Section 3;
(viiix) make any public announcement communicate with respect tostockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act other than in a manner consistent with Section 3;
(xi) otherwise publicly act to seek to control or influence the management, the Board, or submit a proposal forpolicies of the Company or initiate or take any action to obtain representation on the Board, except as permitted expressly by this Agreement;
(xii) call or seek to call, or offer request the call of, alone or in concert with others, any meeting of (with stockholders, whether or without conditions) any extraordinary transaction involving an acquisition of not such a meeting is permitted by the Company’s securities Certificate of Incorporation or assetsBylaws, including, but not limited to, a “town hall meeting;”
(xiii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Common Stock or Series A Preferred Shares in any voting trust or similar arrangement or subject any Common Stock or Series A Preferred Shares to any voting agreement or pooling arrangement, other than (A) customary brokerage accounts, margin accounts and prime brokerage accounts and (B) otherwise in accordance with this Agreement;
(ixxiv) 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, except as expressly provided in this Agreement, seek, encourage or take any other action with respect to the election or removal of any directors (it being acknowledged that those public communications that are permitted and those SEC filings that are required under this Agreement shall not constitute such encouragement);
(xv) form, join or in any other way participate in any a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the securities of the Company (other than a “group” that includes all or some of the Investors, but does not include any other entities or persons that are not members of the Investor Group as of Effective Date); provided, further, that the Investor Group Schedule 13D shall not be amended to add additional members to the Investor Group other than persons that are wholly owned as of the Effective Date by an existing member of the Investor Group or an Associate of the Investor Group, so long as any such additional wholly owned member or Associate agrees to be bound by the terms and conditions of this Agreement;
(as defined xvi) commence, join, encourage, or support any lawsuit, arbitration, or other legal claim against the Company or any of its officers or directors, including without 12| limitation any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors provided, however, that nothing in this clause (xvi) will in any way limit the rights of either party under this Agreement or any other agreement between the parties, including by commencing litigation to enforce such rights;
(xvii) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intent, purpose, plan, or proposal with respect to the Board, the Company, its management, policies, or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xviii) make any request or submit any proposal to amend the terms of this Section 13(d)(34 other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xix) take any action challenging the validity or enforceability of any of the provisions of this Section 4 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section 4;
(xx) make any public communication in opposition to (A) any merger, acquisition, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination or (B) any financing transaction, in each case involving the Company or any of its subsidiaries;
(xxi) call or seek to call any special meeting of the Company (other than calling or seeking to call a special meeting of the holders of the Series A Preferred Stock pursuant to the Series A Certificate of Designation) or action by consent resolutions or make any request under Section 220 of the Exchange ActDelaware General Corporation Law or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) in connection of the Company or any of its subsidiaries; or
(xxii) advise, assist, knowingly encourage, or seek to persuade any person or entity to take any action or make any statement inconsistent with any of the foregoing;.
(xb) seekNotwithstanding anything in Section 4(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict any way which may Investor (including during his time as a Board Observer) from (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be reasonably likely to requireexpected to, involve or trigger require any public disclosure of such request pursuant communications, (ii) privately communicating to applicable Lawany of their investors information regarding the Company based on publicly available information, provided, that such communications are subject to have any provision of this Section 3.1 amended, modified or waived;
(xi) reasonable confidentiality obligations and are not otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventingbe publicly disclosed, impeding, interfering (iii) communicating with or adversely affecting the consummation stockholders of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, Company and others in a "Permitted Transfer"): (imanner that does not 13| otherwise violate Section 4(a) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iiiv) Transfers making a public statement about how such Investor intends to vote and the reasons therefor with respect to any publicly announced Change of Control transaction, (v) exchanging, tendering, or otherwise participating in any tender or exchange offer with respect to the Common Stock or Series A Preferred Shares, whether or not such transaction involves a family member Change of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control Control of the Shareholder Owned Shares so Transferred Company, on the same basis as the other stockholders of the Company, (vi) taking any action necessary to comply with any law, rule, or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over an Investor, or (yvii) such transferee agrees in writing reasonably satisfactory exercising any right permitted under the Series A Certificate of Designation and transaction documents related to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) purchase of the immediately preceding sentence)Series A Preferred Shares, including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request calling upon the Company to notify call a special meeting for the Company’s transfer agent that there is a stop transfer order with respect to all purpose of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shareselecting Series A Preferred Directors.
(c) Prior to As of the termination Effective Date, none of this Agreement the Investors are engaged in accordance with its termsany discussions or negotiations and do not have any agreements or understandings, in written or oral, whether or not legally enforceable, concerning the event that a Shareholder acquires record or acquisition of beneficial ownership of, or the power to vote or direct the voting of, of any additional shares securities of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action and have no actual knowledge that any other stockholders of the parties, be deemed Shareholder Owned Shares and subject to Company have any present or future intention of taking any actions that if taken by the provisions Investors would violate any of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of Except as otherwise provided in this Agreement, this Agreement in accordance with its terms, each Shareholder agrees shall automatically terminate upon the announcement of a transaction that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery constitute a Change of the Merger Agreement by Control involving the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Cooperation Agreement (Lifecore Biomedical, Inc. \De\)
Standstill. (a) Each of Seller and the Shareholders hereby agrees persons signing as Additional Signatories below, each individually and on its own behalf, agree that, from and after the date hereof until execution hereof, neither such Seller nor such Additional Signatory nor any of their respective Affiliates or Associates (as defined in the earlier Poison Pill) (the "Covered Persons") will, nor will they authorize or permit any of the Effective Time of the Merger and the termination of the Merger Agreement, their respective representatives in their capacity as such Shareholder shall not, directly or indirectly, unless to: (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, or become the Beneficial Owner of, any assets units or other interest in the Partnership or direct or indirect rights to acquire any units or other interest in the Partnership (including in all cases equity securities and securities convertible into equity securities); provided, however, that neither Sellers nor the Additional Signatories shall be in violation of this subclause (i) if a Covered Person acquired, offered to acquire or agreed to acquire, or became the Company Beneficial Owner of, units or any subsidiary other interests in the Partnership without the knowledge of Sellers or division thereof;
the Additional Signatories, as the case may be; provided further, however, that if Sellers or the Additional Signatories become aware of such acquisition, offer or agreement, Sellers or the Additional Signatories shall use reasonable best efforts to, or cause the Covered Persons to, sell, transfer or otherwise dispose of such units or other interest in the Partnership; (viii) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person person or entity with respect to the voting of, any voting securities of the Company units (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than the Units beneficially owned by Sellers immediately after the Closing) or other interest in the Partnership; provided, however, that neither Sellers nor the Additional Signatories shall be in violation of this subclause (ii) if a Covered Person discusses the Partnership or voting matters related to recommend that shareholders of any units or other interest in the Company vote in favor of the Merger and the Merger Agreement;
Partnership, (vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiiii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization, liquidation, dissolution or other extraordinary transaction of or involving an acquisition of units or other interest in the Company’s securities or assets;
Partnership, (ixiv) form, join or in any way participate in a “"group” " (as defined in Section 13(d)(3) under of the Securities Exchange ActAct of 1934) in connection with any units or other interest in the Partnership (other than to the extent it may be deemed to be part of a "group" with Purchaser by virtue of having entered into this Agreement or by virtue of the Units which will continue to be or were previously beneficially owned by Sellers), or (v) enter into any written arrangements, understandings or agreement with, or actively advise, assist or encourage, any persons in connection with any of the foregoing;
(x) seek; provided that the foregoing shall not limit the right of Sellers to prosecute, in its discretion and at its sole cost and expense, the existing litigation entitled Gotham Partners, L.P. v. Hallwood Realty Partners, et al. (Civ. Act. No. 15754NC) and an▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇om. Irreparable harm shall be presumed if any way which may be reasonably likely to require, involve Person breaches any term or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amendedArticle VI. Accordingly, modified Sellers and the Additional Signatories agree that Purchaser shall be entitled to an injunction and other equitable relief, without posting any bond or waived;
(xi) otherwise takesecurity in connection therewith, directly or indirectly, any actions with to prevent the purpose of avoiding or circumventing any provision breach of this Section 3.1 or which could reasonably Article VI. The equitable remedies contemplated hereby shall not be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent deemed to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to exclusive remedies for a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination breach of this Agreement but shall be in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power addition to vote or direct the voting of, any additional shares of Company Common Stock or all other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in remedies available at law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. ▇▇▇▇▇▇ agrees that beginning on the date of this Agreement and continuing for twenty-four (a24) Each of the Shareholders hereby agrees that, from and months after the date hereof until on which the earlier parties terminate discussions concerning a potential transaction (the “Standstill Period”), neither Bidder nor any of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall notits affiliates or representatives will in any manner, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated invited in writing by the terms Client’s Board of this Agreement or the Merger AgreementDirectors:
(ia) selloffer, transferseek, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign effect or otherwise dispose of propose (whether by merger, operation of Law publicly or otherwise) (collectively, a “Transfer”)to effect, or enter into any contract, option cause or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary or division thereof;
(vi) makeparticipate in, or in any way assist any other person to offer, seek, effect or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of beneficial ownership of any securities issued by Client or its affiliates or any of Client’s or its affiliates’ assets; (ii) any tender or exchange offer, directly merger or indirectlyother business combination involving Client or its affiliates; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar transaction with respect to Client or its affiliates; or (iv) any “solicitation” of “proxies” (as such those terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting ofrefrain from voting, any voting securities issued by Client or to solicit any consents of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders stockholders of the Company vote in favor of the Merger and the Merger AgreementClient or its affiliates;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixb) form, join or in any way participate in a “group” (as defined in Section 13(d)(3the Securities Exchange Act of 1934, as amended) under with respect to any securities issued by Client or its affiliates, or otherwise seek, alone or together with other persons, to control or influence the Exchange Actmanagement, Board of Directors or policies of Client or its affiliates;
(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving Client or its securities or assets;
(d) take any action that could require Client or its affiliates to make a public announcement regarding any of the types of transactions or matters set forth in connection paragraph (a);
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses (a), (b), (c), or (d);
(f) assist, advise, induce or encourage any other person to take any action of the type referred to in clauses (a), (b), (c), (d), or (e); or
(g) enter into any discussion or arrangements with any third party with respect to any of the foregoing;
. ▇▇▇▇▇▇ also agrees during the Standstill Period not to request Client (x) seekor its directors, in any way which may be reasonably likely to requireofficers, involve employees or trigger public disclosure of such request pursuant to applicable Lawagents), directly or indirectly, to have amend or waive any provision of this Section 3.1 amended, modified or waived;
8 (xi) including this sentence). Bidder further agrees that unless otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated directed by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): Client in writing (i) all communications with Client regarding a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this AgreementPossible Transaction, (ii) Transfers requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding procedures with respect to a family member of Possible Transaction, will be submitted or directed by Bidder or its representatives only to FOCUS Investment Banking LLC (“FOCUS”), as Client’s financial advisor, or a Shareholder (person or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees persons designated in writing reasonably satisfactory to the Parent to be bound and subject to the terms and by FOCUS. The provisions of this Agreement, (iii) Transfers to Section 8 shall terminate upon the public announcement by Client that it has entered into a third party if definitive agreement providing for the transferee agrees in writing reasonably satisfactory to Possible Transaction with any person or persons. The expiration of this Section 8 shall not terminate or otherwise affect any of the Parent to be bound and subject to the terms and other provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)letter agreement.
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Confidentiality Agreement (TSR Inc)
Standstill. During the Cooperation Period, each Investor Party will not, and will cause its respective Affiliates and Representatives acting on its behalf (acollectively with the Investor Parties, the “Restricted Persons”) Each of the Shareholders hereby agrees that, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall to not, directly or indirectly, unless (i) specifically requested by Parent without the prior written consent or (ii) expressly contemplated by authorization of the terms of this Agreement Company or the Merger AgreementBoard:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(vA) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, alone or in concert with any assets Third Party, any Company Interests if such acquisition would result in the Investor Parties (together with their Affiliates) having Beneficial Ownership of, or economic exposure to, more than 15% of the Common Stock outstanding at such time; (B) acquire, by purchase or otherwise, alone or in concert with any Third Party, any Debt Instruments, (C) Transfer any Company Interests to a Restricted Transferee in one or a series of related (x) private transactions and/or (y) other transactions where the ultimate recipient of the Transfer is known to the Restricted Persons; (D) Transfer all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party; or (E) offer, propose, effect, cause or knowingly participate in, or in any way knowingly assist, facilitate or encourage any Third Party to effect or seek, offer or propose to effect or participate in, an Extraordinary Transaction (it being understood that the foregoing shall not restrict the Restricted Persons from tendering (or failing to tender) shares, receiving consideration or other payment for shares, voting their Voting Securities “for” or “against” any Extraordinary Transaction, or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company, or from directing any contact from a Third Party which may contemplate such an Extraordinary Transaction to the Company or its Representatives).
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s stockholders or act or seek to act by written consent in lieu of a meeting (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any stockholder proposal to the Company or the Board or any committee thereof to be voted on by the stockholders of the Company, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board other than the New Director or (E) conduct a referendum of stockholders of the Company;
(iii) make any request for stock list materials or other books and records of the Company or any subsidiary of its subsidiaries pursuant to Section 220 of the General Corporation Law of the State of Delaware or division thereofany other statutory or regulatory provisions providing for stockholder access to books and records, except, for the avoidance of doubt, in connection with any matter as to which any litigation, arbitration or other proceeding would be permitted pursuant to Section 2(c)(x);
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act, including, for the avoidance of doubt, any exempt solicitations) of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(v) make any public proposal concerning the Company seeking to change the number or identity of directors of the Company or the filling of any vacancies or newly created directorships on the Board, any change in the capitalization, capital allocation policy or dividend policy of the Company, any other change to the Board or the Company’s management or corporate or governance structure or policy, or any waiver, amendment or modification to the Charter or the Bylaws or any Company Policies;
(vi) make, knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any other Person with respect to (A) the voting ofgiving or withholding of any proxy relating to, or other authority to vote, any voting securities Voting Securities, or (B) conducting any type of referendum relating to the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders)Company, other than to recommend such encouragement or advice that shareholders of is consistent with the Company vote Board’s recommendation in favor of the Merger and the Merger connection with such matter, or as otherwise specifically permitted under this Agreement;
(vii) submit form, join or act in concert with any Group, with respect to the Company any shareholder proposal under Rule 14a-8 under the Exchange ActVoting Securities, other than a Group consisting solely of Investor Parties;
(viii) make any public announcement enter into a voting trust, arrangement or agreement with respect toto any Voting Securities, or submit a proposal forsubject any Voting Securities to any voting trust, arrangement or offer of agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Investor Parties or without conditions) any extraordinary transaction involving an acquisition Affiliates of the Company’s securities Investor Parties or assets(C) granting proxies in solicitations approved by the Board (or otherwise with the prior approval of the Board);
(ix) form, join or engage in any way participate 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 includes, relates to, or derives any significant part of its value from a decline in the market price or value of the Company Interests or Debt Instruments and would, in the aggregate or individually, result in the Investor Parties ceasing to have a “groupnet long position” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any equity securities of the foregoingCompany;
(x) seekinstitute, in knowingly solicit or join as a party any way which may be reasonably likely litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have enforce any provision of this Agreement instituted in accordance with and subject to Section 3.1 amended8, modified (B) making counterclaims with respect to any proceeding initiated by, or waivedon behalf of, the Company or its Affiliates against a Restricted Person, (C) exercising statutory appraisal rights or (D) responding to or complying with validly issued legal process;
(xi) otherwise take, directly make any request or indirectly, submit any actions with proposal to amend or waive the purpose of avoiding or circumventing any provision terms of this Section 3.1 Agreement (including this subclause), in each case publicly or in a manner which could would reasonably be expected to have the effect result in a public announcement or disclosure of preventingsuch request or proposal; or
(xii) enter into any negotiations, impedingagreements, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Mergerarrangements, or such Shareholder’s ability understandings (whether written or oral) with, or knowingly encourage, assist, solicit, or seek to perform its obligations under this Agreement. Notwithstanding cause, any Third Party to take any action that the foregoing, the following Transfers Restricted Persons are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required prohibited from taking pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this AgreementSection 2(c).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby ▇▇▇▇▇ covenants and agrees that, for a period of seven years from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger this Agreement, unless specifically invited in writing by the Company, neither he, his affiliates (as such Shareholder shall notterm is defined under the Securities Act of 1934 (the "Act")), nor investment entities with respect to which he has sole investment control (including individual investment accounts with respect to which he has discretionary control) shall, directly or indirectly, unless (i) specifically requested by Parent acquire, agree to acquire or make any proposal to acquire any securities (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting powerthereof) or, of any or all material portion of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of the Company or any subsidiary of its subsidiaries, except for the exercise of the 1998 Options received by ▇▇▇▇▇ pursuant to the Stock Option Agreement dated as of October 19, 1998 (the "Stock Option Agreement") in consideration for entering into the Consulting Agreement dated September 19, 1997, as amended pursuant to Section 9 hereof (the "Consulting Agreement"), (ii) propose to enter into any tender or division thereof;
exchange offer, merger or other business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (viiii) effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect, offer or propose (whether publicly or otherwise) to effect, propose or participate in any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries, (iv) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consent to vote, or seek to advise or influence any Person person with respect to the voting of, of any voting securities of the Company or any of its subsidiaries, (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixv) form, join or in any way participate in a “"group” " (as defined in within the meaning of Section 13(d)(3) under of the Securities Exchange ActAct of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (vi) otherwise act, alone or in concert with others, to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any intention, plan or arrangement inconsistent with the foregoing, (viii) request any item be placed before the Company's stockholders for a vote thereof or (ix) advise, assist or encourage any other persons in connection with any of the foregoing;
. ▇▇▇▇▇ also agrees that during such period not to (x) seekrequest the Company (or any of its directors, in any way which may be reasonably likely to requireofficers, involve employees or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise takeagents), directly or indirectly, any actions with the purpose of avoiding to amend or circumventing waive any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (iincluding this sentence) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that take any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request action which might require the Company to notify the Company’s transfer agent that there is make a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, public announcement regarding any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions types of this Agreement, and the number of shares of Company Common Stock held by such Shareholder matters set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of in this Agreementparagraph.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Standstill. During the Restricted Period, Anson will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Each with respect to Company or the Voting Securities, (i) make, participate in or encourage any “solicitation” (as such term is used in the proxy rules of the Shareholders hereby agrees thatSEC, from and after the date hereof until the earlier including any solicitations of the Effective Time type contemplated by Rule 14a-2(b) promulgated under the Exchange Act of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Merger and SEC) in any such solicitation of proxies or consents; (iii) seek to advise, encourage or influence any Person, or assist any Person in so encouraging, advising or influencing any Person, with respect to the termination giving or withholding of any proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Merger AgreementBoard’s recommendation in connection with such matter, such Shareholder shall notif applicable); or (iv) initiate, encourage or participate, directly or indirectly, unless in any “vote no,” “withhold” or similar campaign;
(b) initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) any stockholders of Company for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with respect to Company or the Voting Securities, (i) specifically requested by Parent communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) expressly contemplated by the terms participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of this Agreement “proxy access”; or the Merger Agreement:(iii) conduct any nonbinding referendum or hold a “stockholder forum”;
(d) (i) sellseek, transferalone or in concert with others, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign election or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect appointment to, or consent torepresentation on, a Transfer the Board; (ii) nominate or propose the nomination of, or recommend the record nomination of, or beneficial ownership encourage any Person to nominate or both propose the nomination of or voting powerrecommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or encourage any Person to seek, the removal of any or all member of the Shareholder Owned SharesBoard;
(e) with respect to Company, (i) call or seek to call a special meeting of stockholders, or encourage any Person to call a special meeting of stockholders; (ii) enter into act or seek to act by written consent of stockholders; or (iii) make a request for any voting agreement, proxy, consent stockholder list or power of attorney other records;
(f) other than solely with other Restricted Persons with respect toto Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Shareholder Owned SharesBoard);
(iiig) enter into (i) make any short sale offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Common Stock acquisition by any Third Party (as defined below) of more than 50 percent of Company’s common stock or all or substantially identical property all of Company’s assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or enter into proposal (with or acquire an offsetting derivative contract without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) comment on any Extraordinary Transaction or proposal regarding any Extraordinary Transaction while the Shareholder Owned Shares Anson Designee serves on the Board (it being understood that this clause (g) will not restrict any Restricted Person from tendering shares, receiving payment for shares or substantially identical propertyotherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, encourage, threaten, assist or join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation primarily to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) transfer exercising statutory appraisal rights; (v) responding to or complying with a validly issued legal process; or (vi) bringing litigation against any of the economic interest such person in the Shareholder Owned Shares or enter into any transaction that has case of fraud by such effectperson;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) acquire, offer causing a class of securities of Company to acquirebe delisted from, or agree to acquire, directly or indirectly, by purchase or otherwisecease to be authorized to be quoted on, any assets of the Company securities exchange; or any subsidiary or division thereof;
(vi) make, or in any way participate in, directly or indirectly, any “solicitation” causing a class of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person with respect to the voting of, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than become eligible for termination of registration pursuant to recommend that shareholders Section 12(g)(4) of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiij) make sell, offer or agree to sell to any public announcement with respect toThird Party, through swap or submit a proposal forhedging transactions, derivative agreements or offer of (with or without conditions) otherwise, any extraordinary transaction involving an acquisition of voting rights decoupled from the Company’s securities or assetsunderlying Voting Securities;
(ixk) form, join or engage in any way participate short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of Company’s securities;
(l) other than through non-public communications with Company that would not reasonably be expected to result in or involve public disclosure obligations for any Party, make any request or submit any proposal to amend or waive the terms of this Agreement;
(i) compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities; or (ii) have any other agreement, arrangement or understanding, whether written or oral, with any person related to his or her service as a director of Company, except for customary indemnification obligations to the Anson Designee in their capacity as an employee of a member of the Anson Group as disclosed in writing to Company prior to the date of this Agreement;
(n) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(o) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” (as defined in pursuant to Section 13(d)(313(d) under of the Exchange Act) ), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Anson Group beneficially owning, more than 4.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Anson Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities); or
(p) other than through open market sale transactions where the identity of the foregoing;
purchaser is not known or in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, the securities of Company to any Third Party that, to the knowledge of any Anson Signatory (xafter due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial ownership of any Third Party who, together with its Affiliates and Associates, has beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (p) seekwill not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism). Notwithstanding anything set forth in this Agreement to the contrary, nothing in this Agreement will be deemed to prevent any member of the Anson Group from (i) communicating privately with the Board or Company’s chief executive officer or chief financial officer regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require Company or any member of the Anson Group to make public disclosure with respect thereto; (ii) making or sending private communications to investors in any way member of the Anson Group or any of their Affiliates or prospective investors in any member of the Anson Group or any of their Affiliates, but only if such communications (1) do not circumvent or violate any of the restrictions set forth in this Agreement; (2) are based only on publicly available information; and (3) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; (iii) making any statements in response to any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands, request for information or similar processes in connection with any lawsuit, action, suit, claim, inquiry from a governmental authority or other proceeding before any court that Anson reasonably believes, after consultation with outside counsel, to be legally required by applicable law; (iv) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which may be reasonably likely to require, involve lien or trigger public disclosure encumbrance is released upon the transfer of such request pursuant to applicable Lawclaims or interests in accordance with the terms of the custody or prime brokerage agreement(s), to have any provision of this Section 3.1 amendedas applicable; or (v) negotiating, modified or waived;
(xi) otherwise takeevaluating and/or trading, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership performance of, or the power to vote or direct the voting but not primarily consist of, any additional shares securities of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement.
Appears in 1 contract
Sources: Agreement (Five9, Inc.)
Standstill. (a) Each of Crescendo Party agrees that during the Shareholders hereby agrees that, from and after period commencing on the date hereof until and ending on the earlier Termination Date, without the prior written consent of the Effective Time Board specifically expressed in a written resolution adopted by a majority vote of the Merger and the termination of the Merger Agreemententire Board, such Shareholder shall it will not, directly or indirectlyand will cause each of its Affiliates, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger AgreementAssociates, officers, agents and other Persons acting on its behalf not to:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer or propose to acquire, or agree to acquireacquire (except by way of stock dividends or other distributions or offerings made available to holders of Voting Securities generally on a pro rata basis, provided that any such securities so received shall be subject to the provisions hereof), directly or indirectly, whether by purchase purchase, tender or exchange offer, through the acquisition of control of another Person (as such term is defined in Section 14), by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) or otherwise, any assets Voting Securities, if after giving effect to such acquisition it (by itself or together with any other Crescendo Party, their respective Affiliates and Associates and any other Person with whom it, such other Crescendo Party or any such Affiliate or Associate has any agreement, understanding or arrangement with respect to Voting Securities) would beneficially own more than 9.9% of the outstanding Voting Securities. For the purposes of computing the beneficial ownership at the time of any purchase, the number of outstanding Voting Securities shall be determined by the latest available Company or any subsidiary or division thereof;filing with the SEC.
(viii) makeengage, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” of “proxies” " (as such terms are used term is defined in Rule 14a-1(l) promulgated by the rules SEC under the Exchange Act) of proxies or consents (whether or not relating to the Securities and Exchange Commission) to voteelection or removal of directors), or seek to advise advise, encourage or influence any Person with respect to the voting ofof any Voting Securities; initiate, any voting securities of propose or otherwise "solicit" (as such term is defined in Rule 14a-1(l) promulgated by the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that SEC under the Exchange Act) shareholders of the Company vote in favor for the approval of the Merger and the Merger Agreement;
(vii) submit shareholder proposals whether made pursuant to the Company any shareholder proposal under Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such shareholder proposal; or otherwise communicate or seek to communicate with the Company's shareholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(viii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the Company’s securities or assets;
(ixiii) form, join or in any way participate in a “any "group” " (as defined in Section 13(d)(3) within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with respect to any Voting Securities, other than a "group" that includes all or some lesser number of the Crescendo Parties, but does not include any other members who are not currently identified as a Crescendo Party;
(iv) 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, except as expressly set forth in this Agreement;
(v) otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the management, the Board or policies of the Company, except as otherwise expressly permitted in this Agreement;
(vi) have any discussions or communications, or enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing;
(x) seek, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any way which may be reasonably likely of the foregoing; or
(vii) make any proposal (including publicly disclose or discuss any proposal) or enter into any discussion regarding any of the foregoing, or make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, make any demand to requirereview any of the books and records of the Company, involve including any list of shareholders, or trigger public disclosure of such make or publicly disclose any request pursuant to applicable Lawamend, to have waive or terminate any provision of this Section 3.1 amended, modified or waivedAgreement;
(xiviii) otherwise take, directly take any initiative with respect to the Company or indirectly, any actions with of its subsidiaries which involves making a public announcement or that could require the purpose Company or any of avoiding its subsidiaries to make a public announcement regarding such initiative or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by activities referred to in any of the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): foregoing subparagraphs (i) a pledge of Shareholder Owned Shares required under through (viii);
(ix) take or cause or induce others to take any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control action inconsistent with any of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement)foregoing.
(b) Any Transfer in violation of Section 3.1(a) Notwithstanding the foregoing, Crescendo shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order relieved from compliance with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this AgreementSection 4(a) hereof to the extent necessary to permit it to nominate no more than two candidates for election to the Board as a director to run as a "short slate" against the Board's slate of nominees for the 2008 Annual Meeting and to solicit proxies in support of such candidate(s) for election to the Board, as well as to request a shareholder list and related information and make any and all filings and/or announcements necessary in the sole discretion of Crescendo, in connection with such nomination, and to vote all Voting Securities that are then beneficially owned by Crescendo in favor of the number election of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock candidate or voting interests shall automatically become subject candidates to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, Board and in any court or before way the Crescendo Parties see fit with regard to any Government, which alleges that nominees on the execution and delivery of the Merger Agreement slate nominated by the Company, or Board for the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger Agreement2008 Annual Meeting.
Appears in 1 contract
Sources: Settlement Agreement (Premiere Global Services, Inc.)