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 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 The Frost Group Shareholders hereby agrees that, from covenant and after agree that during the five year period commencing on the date hereof until and expiring on the earlier 5th year anniversary of the Effective Time effective date of the Merger and the termination of the Merger this Agreement, such each Frost Group Shareholder shall not, and shall not permit or cause any affiliate, associate, immediate family member (as such term is defined in Regulation S-K under the Exchange Act) or group member 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) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose engage in any transactions in any class 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, including any derivative;
(ii) enter into any voting agreement, proxy, consent or power of attorney solicit proxies with respect to, or deposit into a voting trust, to any securities of the Shareholder Owned SharesCompany;
(iii) enter into actively oppose any short sale with respect action approved by a majority of the board of directors of the Company, or become a “participant” in any “election contest” relating to the Common Stock election of directors of the Company (as such terms are used in rule 14a-11 of Regulation 14A promulgated under the Exchange Act (or substantially identical property any comparable or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical propertysuccessor rule));
(iv) transfer any propose, make or initiate, or solicit stockholders of the economic interest in Company for the Shareholder Owned Shares approval of, one or enter into any transaction that has such effectmore stockholder proposals;
(v) acquire, offer to acquirepropose, or agree to acquiremake, directly initiate or indirectlysolicit any proposals from, by or provide any information or participate in any discussions or negotiations with, or otherwise cooperate in any way with or assist, any person concerning any merger, consolidation, other business combination, tender or exchange offer, recapitalization, liquidation or dissolution or any purchase or otherwise, other acquisition or sale or other disposition of assets (other than in the ordinary course of business) or shares of capital stock of the Company or any assets of its subsidiaries or divisions or any similar transaction involving the Company or any subsidiary or division thereofof the Company;
(vi) maketake any other action for the purpose of or with the effect of changing or influencing the control of the Company, or in connection with or as a participant in any way participate in, directly transaction having that purpose 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 Agreementeffect;
(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 any “group” (as defined in within the meaning of Section 13(d)(3) of the Exchange Act or Rule 13d-5(b)(i) promulgated under the Exchange Act) in connection with respect to any securities of the Company; or
(viii) induce, attempt to induce, encourage or solicit, or cooperate with, any other Person to do 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: Standstill Agreement (Pharmaceutical Financial Syndicate, LLC), Standstill Agreement (Winston Pharmaceuticals, Inc.), Standstill Agreement (Winston Pharmaceuticals, Inc.)
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 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. 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 of the Shareholders The Executive hereby agrees that, from and after unless specifically requested in writing in advance by the date hereof until Board, the earlier Executive will not at any time during the period of the Effective Time Executive’s employment with the Company, the period, if any, during which the Executive is receiving payments from the Company pursuant to Section 4, and for a period of the Merger three years thereafter (and the termination of the Merger Agreement, Executive will not at any time during such Shareholder shall notperiod assist or encourage others to) participate, directly or indirectlyindirectly in any activity that, unless if consummated, would result in a Change in Control of the Parent. For purposes of this Section 9, a Change in Control of the Parent shall mean (ia) specifically requested by any sale or other disposition of all or substantially all of the assets of the Parent, (b) any acquisition of more than 40% of the then outstanding shares of common stock of the Parent, (c) any merger in which the existing stockholders of the Parent fail to own 50% or more of the corporation resulting from such merger or (iid) expressly contemplated by any change in the terms membership of the Board such that the individuals who, as of the date of this Agreement, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of such Board; provided, however, that any individual who becomes a director of the Parent subsequent to the date 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”)whose election, or enter into any contractnomination for election by the Parent’s stockholders, option or other agreement with respect to, or consent to, was approved by the vote of at least a Transfer of, the record or beneficial ownership or both or voting power, of any or all majority of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney with respect to, or deposit into directors then comprising the Incumbent Board shall be deemed 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 member of the economic interest in the Shareholder Owned Shares or enter into any transaction Incumbent Board; and provided further, that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets no individual who was initially elected as a director of the Company Parent as a result of an actual or any subsidiary or division thereof;
(vi) makethreatened election contest, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the rules Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any other actual or threatened solicitation of proxies or consents by or on behalf of any individual, entity or group, including any “person” within the meaning of Section 13(d) 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)Act, other than to recommend that shareholders the Board shall be deemed a member 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)Incumbent 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 2 contracts
Sources: Employment Agreement (Firearms Training Systems Inc), Employment Agreement (Firearms Training Systems Inc)
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. 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 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. (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 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 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. (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 Vector Group shall not, and shall cause each of its controlled Affiliates not to, directly or indirectly, unless in any manner:
(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 toseek, 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 whether by purchase, tender or indirectlyexchange offer, agreement or business combination, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including, without limitation, 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, beneficial ownership of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including, without limitation, voting rights decoupled from the underlying Voting Securities), (ii) acquire, cause to be acquired or offer, seek, propose 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, propose or agree to acquire, ownership (including, without limitation, beneficial ownership) of any material asset or business of the Company or any subsidiary right or division thereofoption to acquire any such material 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, 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, whether or not such a meeting is permitted by the Charter or Bylaws, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, whether or not such a meeting is permitted by the Charter or Bylaws, (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;
(c) except as otherwise provided in each of Section 1 and Section 2, take any action in support of or make any public proposal or public request, or private proposals or private requests that are intended to, and would reasonably be expected to, require any public disclosure, that constitutes or would result in: (i) advising, replacing or influencing any director or the management of the Company, including, without limitation, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (ii) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (iii) any material change in the Company’s management, business or corporate structure, (iv) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (v) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(d) communicate with stockholders of the Company or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act (other than in connection with an Extraordinary Transaction);
(e) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including, without limitation, 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 (including, without limitation, by use of or in coordination with a universal proxy card), 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 after obtaining the prior written consent of the Board);
(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, without limitation, 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 that is otherwise in accordance with this Agreement or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(g) 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, the disposition of any Voting Securities or in conducting any referendum (binding or non-binding) (including, without limitation, 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 after obtaining the prior written consent of the Board;
(h) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Vector Group to any Third Party with a known history of activism or known plans to engage in activism (with such activism comprising (i) any submission by such Third Party (in its capacity as a stockholder) of (A) a notice to nominate directors for stockholder election at a Stockholder Meeting, or (B) a proposal, whether binding or precatory, to be adapted or otherwise passed by stockholders at a Stockholder Meeting, (ii) issuing any press release or making any public filing with the intention of influencing management, the boards of directors or stockholders of a company or (iii) filing a Schedule 13D);
(i) 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 Vector 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 Vector 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 Vector Group and is made by the Vector Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Vector Group or any other person;
(j) 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 Securities and Exchange CommissionAct) to vote, or seek to advise or influence any Person with respect to the voting of, any voting Voting Securities or securities of any of the Company Company’s subsidiaries (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend a group that shareholders includes all or some of the Company vote in favor members of the Merger Vector Group, but does not include any other entities or persons that are not members of the Vector Group as of the date hereof; provided, that nothing herein shall limit the ability of an Affiliate of the Vector Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement and, if the Merger AgreementVector Group files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after the Vector Group has formed a group with such Affiliate);
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiik) make any public announcement or public proposal, or private announcements or private proposals that are intended to, and would reasonably be expected to, require any public disclosure, with respect to, or submit a proposal forpublicly offer or publicly propose, or privately offer of or privately propose in a manner that is intended to, and would reasonably be expected to, require any public disclosure (with or without conditionsi) any extraordinary form of business combination, merger or acquisition or other transaction involving an acquisition relating to a material amount of assets or securities of the Company or any of its subsidiaries, (ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (iii) any form of tender or exchange offer for Voting Securities, whether or not such transaction involves a Change of Control; it being understood that the foregoing shall not prohibit the Vector Group or its Affiliates from (A) acquiring Voting Securities in accordance with Section 3(a), (B) selling or tendering their shares of Common Stock in accordance with Section 3(h), and otherwise receiving consideration pursuant to any such transaction or (C) voting on any such transaction in accordance with Section 2;
(l) make or publicly advance any request or proposal to amend, modify, waive, grant any consent under or otherwise abstain from enforcing 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 Vector Group may make confidential requests to the Board to amend, modify, waive, grant any consent under or otherwise abstain from enforcing 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 Vector Group and is made by the Vector Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Vector Group or any other person;
(m) make a request for a list of the Company’s securities stockholders or assets;
(ix) form, join for any other books and records of the Company pursuant to Section 220 of the Delaware General Corporation Law or in any way participate in a “group” (as defined in Section 13(d)(3) Rule 14a-7 under the Exchange Act; or
(n) in connection with enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the foregoing;
foregoing (xother than this Agreement) seekor encourage, assist, advise, act in concert or participate with, solicit, seek or seek to cause any way which may person to undertake any action or make any statement inconsistent with this Section 3. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 3 shall not be deemed to restrict the Vector Group 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 likely to requirebe expected to, involve or trigger require any 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 or (y) such transferee agrees Company and others in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of a manner that does not otherwise violate this Agreement, or (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 making any public disclosure necessary to satisfy comply with any Legal Requirement, provided, that a breach by 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 Vector Group of this Agreement in accordance with its terms, in is not 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 cause 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 Legal Requirement. Nothing in this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join shall limit or voluntarily aid any Action in law or in equity, otherwise restrict in any court respect the actions or before rights of 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 (including, for the avoidance of doubt, the New Directors) under applicable law in his or her capacity as such or the exercise of any member thereof or which otherwise challenges director’s fiduciary duties under applicable law as directors of the Merger AgreementCompany. Without limitation to the foregoing, each New Director shall have the same (i) access to members of management as every other director and (ii) rights as every other director to access the books and records of the Company and to make information requests of management in order to facilitate these rights.
Appears in 2 contracts
Sources: Cooperation Agreement (Liveperson Inc), Cooperation Agreement (Vector Capital Management, L.P.)
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 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 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. (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. 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 of the Shareholders hereby The GreenWood Group agrees that, from and after during the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger AgreementCovered Period, such Shareholder it shall not, and shall cause each of the members of the GreenWood Group not to, directly or indirectlyindirectly (including through its or any of its advisors, unless (i) specifically requested by Parent agents, representatives or (ii) expressly contemplated by other third parties, in each case, acting on its or their behalf or at its or their direction), in any manner, alone or in concert with others, without the terms prior written consent of this Agreement the 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 otherwiseA) (collectivelyx) initiate, 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, engage in, knowingly encourage or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are term is used in the proxy rules promulgated under the Exchange Act), including, without limitation, any solicitations of the Securities and type contemplated by Rule 14a-2(b) promulgated under the Exchange Commission) Act, of proxies or consents to votevote with respect to, or seek to advise from the holders of, any securities of the Company or (y) advise, knowingly encourage or knowingly influence any person (other than any member of the GreenWood Group; provided, however, that any advice, encouragement or influence provided to any Person member of the GreenWood Group shall be provided in a manner that does not otherwise violate and is not inconsistent with the other provisions of this Section 2 or Section 3) with respect to the voting of, or the giving or withholding of any voting proxy, consent or other authority to vote or act with respect to, any securities of the Company, including, without limitation, in connection with the election or removal of directors or any other matter or proposal, (B) become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in any such solicitation of proxies or consents, other than a solicitation or acting as a participant in support of all of the nominees of the Board at any stockholder meeting, (C) submit, propose, be the proponent of or present any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) to be acted upon by stockholders of the Company during the Covered Period or knowingly encourage any person to submit or present any such stockholder proposal, (D) initiate or participate in, or knowingly encourage any person to initiate, directly or indirectly, any “vote no,” “withhold” or similar campaign with respect to the Company or (E) grant a proxy with respect to its Common Stock to any person that is not a member of the GreenWood Group (a “Third Party”) or a director or officer of the Company, in each case, other than as permitted by Section 2(c); (ii) with respect to the Company or the Common Stock, (A) communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act or (B) participate in, or take any action pursuant to, or knowingly encourage any person to take any action pursuant to, any type of “proxy access”; (iii) (A) form, join (whether or not in writing) or act in concert with any “group” (as such term is defined in Section 13(d) of the Exchange Act) with any Third Party with respect to the securities of the Company or (including by making publicly known such Shareholder’s position on B) agree, attempt or propose to deposit any matter presented to shareholders), other than to recommend that shareholders securities of the Company vote in favor or any securities convertible or exchangeable into or exercisable for any such securities into any voting trust or similar arrangement, or subject any securities of the Merger and Company to any trust, arrangement or agreement with any Third Party with respect to the Merger voting or consent to vote thereof (excluding customary brokerage accounts, margin accounts or prime brokerage accounts), except as expressly set forth in this Agreement;
(ii) with respect to the Company or the Common Stock, (A) communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act or (B) participate in, or take any action pursuant to, or knowingly encourage any person to take any action pursuant to, any type of “proxy access”;
(iii) (A) form, join (whether or not in writing) or act in concert with any “group” (as such term is defined in Section 13(d) of the Exchange Act) with any Third Party with respect to the securities of the Company or (B) agree, attempt or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities into any voting trust or similar arrangement, or subject any securities of the Company to any trust, arrangement or agreement with any Third Party with respect to the voting or consent to vote thereof (excluding customary brokerage accounts, margin accounts or prime brokerage accounts), except as expressly set forth in this Agreement;
(iv) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other “group” (as such term is defined in Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, or direct any Third Party in the acquisition of, any securities of the Company or any rights decoupled from the underlying securities that would result in the GreenWood Group owning, controlling or otherwise beneficially owning more than 12.5% in the aggregate of the then-outstanding shares of Common Stock (such percentage, the “Ownership Limit”); provided, however, that nothing herein will require securities to be sold to the extent the members of the GreenWood Group, collectively, exceed the Ownership Limit under this clause (iv) as the result of a share repurchase, tender or similar transaction by the Company that reduces the number of outstanding shares of Common Stock;
(v) except in a transaction approved by the Board, in an open market broker sale transaction where the identity of the purchaser is not known or in an underwritten widely dispersed public offering (for which the lead underwriter(s) are approved by the Company), sell, offer, or otherwise dispose, or agree to sell, offer, or otherwise dispose directly or indirectly, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities held by the GreenWood Group to any Third Party that, to such person’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of five percent (5%) or more of the shares of Common Stock outstanding at such time;
(vi) sell, offer or agree to sell, transfer, assign or convey, directly or indirectly, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying securities of the Company held by any member of the GreenWood Group to any Third Party;
(vii) submit to the Company (A) seek, make or submit, either alone or in concert with others, any shareholder offer or 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) with respect to any extraordinary transaction involving an tender or exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, reorganization, sale or acquisition of substantially all of the Company’s assets, restructuring, liquidation, separation, spin-off, dissolution or other extraordinary transaction involving the Company (including its subsidiaries or joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), (B) knowingly solicit any person to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, (C) make any public (or reasonably expected to become public) statement with respect to an Extraordinary Transaction or (D) 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 clause (vii); provided, however, that this clause (vii) shall not preclude the GreenWood Group or any member thereof from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company;
(viii) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than 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’s securities;
(ix) formcompensate, join or in enter into any way participate in agreement, arrangement or understanding (whether written or oral) to compensate, any person for his or her service as a “group” (as defined in Section 13(d)(3) under director of the Exchange Act) in connection Company with any cash, securities (including, without limitation, any rights or options convertible or exchangeable into, or exercisable for, securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to the foregoingCompany or its securities;
(x) (A) call or seek to call, or request the call of, any meeting of stockholders, including by written consent, whether or not such a meeting is permitted by the Restated Certificate of Incorporation of the Company (as it may be amended and/or restated, the “Certificate of Incorporation”) or the Amended and Restated Bylaws of the Company (as they may be amended and/or restated, the “Bylaws”), including, without limitation, a “town hall meeting”, (B) seek any individual’s election or appointment to, or any representation on, the Board, except as set forth in this Agreement, (C) nominate or propose the nomination of, or knowingly encourage any person to nominate, propose the nomination of, any candidate to the Board, except as set forth in this Agreement, (D) seek, or advise, knowingly encourage any person to seek, the removal or election of any member of the Board or management, other than in accordance with any way which may be reasonably likely recommendation of the Board or as permitted in this Agreement, (E) solicit consents from stockholders or otherwise act or seek to requireact by written consent, involve other than in accordance with any recommendation of the Board or trigger public disclosure of such request as permitted pursuant to applicable Section 2(c), (F) conduct any type of binding or nonbinding referendum of stockholders or (G) demand a copy of, or make any request for any stockholder list or other Company books and records, whether pursuant to Rule 14a-7 promulgated under the Exchange Act, the Delaware General Corporation Law, any other regulatory provisions of Delaware providing for stockholder access to have any provision books and records (including, without limitation, lists of this Section 3.1 amended, modified or waivedstockholders);
(xi) initiate, solicit or join as a party any litigation, arbitration, claim or other proceeding against or involving the Company, its Affiliates or any of its or their respective current or former directors, officers, employees, agents or representatives, in their respective capacities as such (including, without limitation, derivative actions and class actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any of the members of the GreenWood Group from (A) bringing litigation against the Company solely to enforce any provision of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against any of the members of the GreenWood Group, (C) exercising statutory appraisal rights, (D) responding to or complying with validly issued legal process from any governmental authority with competent jurisdiction over such member or (E) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement (and the Company agrees that this clause (xi) (including the exceptions thereto) shall apply mutatis mutandis during the Covered Period to the Company and its directors, officers, employees and agents (in each case, acting in their respective capacities as such) and Affiliates with respect to the members of the GreenWood Group or any of its or their respective current or former directors, officers, employees, partners, agents or representatives, in their respective capacities as such);
(xii) make or submit any proposal, request or statement, either publicly or in a manner that would reasonably be expected to require public disclosure, with respect to: (A) advising, controlling, changing or influencing the Board or management of the Company, including, without limitation, any plans or proposals with respect to any change in the Board, including, without limitation, the number or term of directors or the filling of any vacancies on the Board, (B) any change in the capitalization, dividend, share repurchase or capital allocation policies, programs or practices of the Company, (C) any change in the Company’s management, business, operations, strategy, governance, corporate structure or other affairs or policies, (D) any waiver, amendment or modification to the Certificate of Incorporation or Bylaws, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case, except as permitted by, or in accordance with, this Agreement;
(xiii) make any public (or reasonably expected to become public) disclosure, announcement or statement or speak to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence the Company’s stockholders, 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;
(xiv) make any public (or reasonably expected to become public) disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, the Company’s management, policies, affairs, securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xv) make any public (or reasonably expected to become public) disclosure, announcement or statement to take any of the foregoing actions that any member of the GreenWood Group is prohibited from taking pursuant to this Section 2(a);
(xvi) initiate or enter into any negotiations, agreements, contracts, arrangements or understandings, in all cases whether oral or written, formal or informal, with any Third Party with respect to such person taking any action that any member of the GreenWood Group is prohibited from taking pursuant to this Agreement or otherwise takeknowingly advise, encourage or seek to persuade any person to take any such action; or
(xvii) request or propose, directly or indirectly, any actions with amendment or waiver of the purpose of avoiding or circumventing any provision terms of this Section 3.1 Agreement, publicly or which could in a manner that would reasonably be expected to have the effect of preventing, impeding, interfering with result in a public announcement 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 disclosure 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)request or proposal.
(b) Any Transfer Notwithstanding anything to the contrary in violation this Agreement, nothing in this Agreement shall prohibit or restrict any member of Section 3.1(athe GreenWood Group from (i) shall be void. Each Shareholder agrees to authorize and request communicating privately with any director or senior officer of the Company or any other individuals authorized by the Company regarding any matters, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by the Company or the GreenWood Group; (ii) communicating confidentially with GreenWood’s controlled Affiliates and its and their managing members, principals, general partners, employees, advisors or attorneys so long as such communications (A) are not made with an intent to notify the Company’s transfer agent that there is violate, and would not be reasonably expected to result in 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 violation of, Section 2 or Section 4 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 provision 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 Confidentiality Agreement, (B) do not involve the disclosure or sharing 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.confi
Appears in 2 contracts
Sources: Nomination and Cooperation Agreement (Jack in the Box Inc), Nomination and Cooperation Agreement (Jack in the Box Inc)
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 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 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. (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 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. (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. 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 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, without the prior written consent of two-thirds of the Merger and the termination members of the Merger AgreementBoard specifically expressed in a written resolution, such Shareholder shall notneither it nor any of its Related Persons (as defined below) will, and it will cause each of its Related Persons not to, directly or indirectly, unless alone or with others, including, without limitation, Acting in Concert (ias defined below) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreementwith others, in any manner:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign 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 not such transaction involves a Change of Control of the Company; provided, however, that this clause (i) shall not preclude the tender by any Investor of any securities of the Company into any tender or exchange offer not made, financed, or consent to, a Transfer of, otherwise supported by the record Investor Group or beneficial ownership any Affiliate or both Associate thereof or voting power, preclude the ability of any Investor to vote its shares of Common Stock for or all of against any transaction involving the Shareholder Owned SharesCompany’s securities where the transaction is not proposed or sponsored by any Investor or any Affiliate or Associate thereof;
(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 engage in any solicitation activities on behalf of any person, or conduct any exempt solicitation, including under Rule 14a-2(b)(1) under the Exchange Act, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any voting securities of the Company, or otherwise take any action that could cause any Investor to be deemed 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, respectively, under the Shareholder Owned SharesExchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;
(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 except as expressly provided in Section 4 of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) this Agreement, 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 (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any subsidiary rights decoupled from the underlying securities of the Company;
(iv) advise, encourage or division thereofinfluence any person with respect to the voting of (or execution of a proxy or written consent in respect of) or disposition of any securities of the Company;
(v) provide investment advice with respect to the Company’s securities to any person, or provide logistical advice or assistance to any person engaged in a contested solicitation of proxies from the Company’s stockholders in connection with a meeting of stockholders of the Company or the solicitation of written consents from the Company’s stockholders;
(vi) makeother than in open-market broker-sale transactions conducted pursuant to Rule 144 of the Securities Act of 1933, as amended, where the identity of the purchaser is not known or in any way participate inunderwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities held by the Investors or their Affiliates or Associates to any person or entity not a party to this Agreement (a “solicitation” of “proxies” (as Third Party”) that would result in such terms are used Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the rules aggregate more than 4.99% of the Securities shares of Common Stock outstanding at such time;
(vii) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities held by the Investors to any Affiliate or Associate of the Investors not a party to this Agreement;
(viii) engage in any short sale with respect to any security (other than a broad-based market basket or index) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(ix) except as otherwise expressly set forth in this Agreement, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, governance, compensation, policies, strategic direction, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Certificate of Incorporation or the Company’s Amended and Restated Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange CommissionAct;
(x) to vote, call or seek to advise call, or influence request the call of, alone or in concert with others, any Person meeting of stockholders, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation or the Company’s Amended and Restated Bylaws, including, but not limited to, a “town hall meeting;”
(xi) seek, alone or in concert with others, representation on the Board, except as expressly permitted by this Agreement;
(xii) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign relating to the Company;
(xiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting ofof 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);
(xiv) seek, or encourage any voting securities 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 by making publicly known such Shareholder’s position on any matter presented submission of stockholder proposals 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 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;
(ixxv) 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);
(xvi) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 220 of the DGCL or pursuant to any other statutory right or otherwise;
(xvii) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Investor from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) exercising statutory dissenter’s, appraisal or similar rights under the DGCL; provided, further, that the foregoing shall also not prevent the Investors from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted in this Section 3(a)(xvii);
(xviii) engage any private investigations firm or other person to investigate any of the Company’s directors or officers;
(xix) take any action, directly or indirectly, to interfere with any employment, consulting, compensation, indemnification, separation or other agreements, arrangements or understandings, whether written or oral, formal or informal, between the Company and any current or former director or officer of the Company, or which are intended to benefit any current or former director or officer of the Company, including, but not limited to, any provisions of the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws intended to indemnify, provide advancement of expenses or limit the liability of, any current or former director or officer of the Company;
(xx) disclose publicly or privately, in a manner that could reasonably be expected to 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;
(xxi) 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;
(xxxii) 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;
(xxiii) 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
(xixxiv) 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 provisions of this Section 3 shall not limit in any respect each of the New Directors from taking actions in good faith solely in his or her capacity as directors of the Company, recognizing that such actions are expressly permitted under subject to such director’s fiduciary duties to the Company and its stockholders (it being understood and agreed that neither the Investors nor any of their Affiliates or Associates shall seek to do indirectly through either of the New Directors anything that would be prohibited if done by any of the Investors or their Affiliates and Associates directly).
(c) The foregoing provisions of this Agreement Section 3 shall not prohibit the Investor Group or its directors, officers, partners, employees, members, representatives, or agents, in each case acting in such capacity, from engaging in private discussions with the Company concerning the Investor Group’s views or suggestions concerning the Company so long as such private discussions are not intended to, and would not be reasonably expected to, trigger public disclosure obligations for any party or run afoul of any of the provisions of Section 3(a).
(each such Transfer, a "Permitted Transfer"): (id) a pledge As 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, (i) none of the Investors or its Affiliates and Associates are engaged in any discussions or negotiations with any person concerning the acquisition of economic ownership of any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities of the Company, (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 none of the Shareholder Owned Shares so Transferred Investors or its Affiliates and Associates have any agreements, arrangements, or understandings, written or oral, formal or informal, and whether or not legally enforceable, with any person concerning the acquisition of economic ownership of any securities (yincluding common and preferred equity interests and debt that is convertible into any equity interests) such transferee agrees in writing reasonably satisfactory to of the Parent to be bound Company or any rights decoupled from the underlying securities of the Company, and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if none of the transferee agrees in writing reasonably satisfactory to the Parent to be bound Investors or its Affiliates and subject to the terms Associates have any actual 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 non-public knowledge that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) stockholders of the immediately preceding sentence)Company, including in connection any stockholders that have a Schedule 13D currently on file 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 SEC with respect to all securities 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 have any present or future intention of such acquisition. Such shares taking any actions that if taken by the Investors would violate any 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. The Investors and its Affiliates and Associates agree to refrain from taking any actions during the Standstill Period to intentionally encourage other stockholders of the Company or any other persons to engage in any of the actions referred to in the previous sentence.
(de) Prior As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially own,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock that such person has the right to acquire pursuant to the termination 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 Common Stock; the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, or other entity of any kind or nature; the term “Related Person” shall mean, as to any person, any Affiliates or Associates of such person and any other persons under the control of such person or such person’s Affiliates or Associates; and the term “business day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in the State of Alaska are authorized or obligated to be closed by applicable law. For purposes of this Agreement Agreement, a person shall be deemed to be “Acting in accordance Concert” with its termsanother person if such person knowingly acts (whether or not pursuant to an express written or oral agreement, each Shareholder agrees that it will not bringarrangement or understanding), commence, institute, maintain, prosecute, join or voluntarily aid any Action in law concert or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Companyparallel with such other person, 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.towards a common goal with such other per
Appears in 2 contracts
Sources: Cooperation Agreement, Cooperation Agreement (Alaska Communications Systems Group Inc)
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 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 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 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. (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 Purchaser covenants that, from and after the date hereof until the earlier of date twelve (12) months after the Effective Time of the Merger and the termination of the Merger Agreementdate hereof, such Shareholder Purchaser, together with any other co-managed funds (collectively with the Purchaser, the “Purchaser Related Funds”), shall notnot (and shall cause its and their respective representatives acting at its and their respective behalf not to), in any manner acting alone or in concert with others, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by without 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 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;
Company, (iix) enter into except in accordance with Section 4.16 hereof, acquire or make 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 proposal to acquire, directly or indirectly, by purchase means of purchase, merger, business combination, tender offer, exchange offer or otherwisein any other manner, record or beneficial ownership of any securities of the Company or direct or indirect rights to acquire any securities of the Company or acquire any right to vote or direct the voting of any securities of the Company, in each case in excess of 9.9% of the Company’s issued and outstanding Ordinary Shares, or acquire any assets of the Company or any subsidiary seek to control or division thereof;
(vi) makeinfluence, or in any way participate inmanner, directly the management, Board of Directors 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 policies of the Company’s securities or assets;
, (ixy) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) within the meaning of Rule 13d-5 under the Exchange Act) with respect to the beneficial ownership of any voting securities of the Company having beneficial ownership in excess of 9.9% of the Company’s issued and outstanding Ordinary Shares or make, or in any way participate in, any solicitation of proxies or consents (whether or not relating to the election or removal of directors) with respect to any securities of the Company or (z) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other Persons in connection with any of the foregoing;
; provided, however, that this Section 4.13 shall not apply to the following: (xa) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure acquisitions of such request securities of the Company pursuant to applicable Law, to have any provision of this the Transaction Documents (including in accordance with 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 member4.16) 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 of any securities acquired pursuant to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
Transaction Documents, (b) Any Transfer in violation any acquisitions of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request Ordinary Shares or ADSs as a result of the Company to notify deposit or withdrawal of securities under 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.
Deposit Agreement, (c) Prior subject 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 ofSection 4.15 and applicable law, any additional shares actions (including acquisitions 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 partiesCompany or any derivative securities or borrowing, be deemed Shareholder Owned Shares and subject to locating or acquiring securities of the provisions Company for purposes of this Agreementconducing or covering any Short Sale) as part of any hedging activities undertaken by any Purchaser Related Fund, 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 any actions undertaken by any portfolio company of any Purchaser Related Fund or any company in which any Purchaser Related Fund has an equity or other investment, provided that any such actions have not been made as part of a scheme or arrangement in order to avoid, or seek to avoid, the termination observance 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 AgreementSection 4.13.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby agrees that, from and after the date hereof until Until the earlier of the Effective Time time (x) the Holder ceases to own any Subject Securities or Warrants or (y) the Board publicly supports a Change of Control (as defined in the Loan Agreement); neither the Holder nor an affiliate of the Merger and the termination of the Merger Agreement, such Shareholder shall not, directly or indirectlyHolder will, unless (i) specifically requested by Parent or (ii) expressly contemplated approved in advance in writing by the terms of this Agreement or the Merger AgreementBoard:
(i) sellmake, transferor knowingly induce any Person (as defined in the Loan Agreement) to make, tenderany unsolicited take-over bid, pledgeunsolicited merger or any other unsolicited going-private transaction involving the Company;
(ii) directly engage in, encumberparticipate in, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of in any way initiate any “solicitation” (whether by merger, operation of Law as such term or otherwisecorresponding term is defined in the Business Corporations Act (Alberta) (collectivelythe “Act”) and in any applicable securities laws) of proxies or consents, with respect to the voting of any securities of the Company;
(iii) deposit any of the Subject Securities into a “Transfer”)voting trust, or subject any of the Subject Securities to any agreement or arrangement with respect to the voting of such securities, or enter into any contract, option or other agreement or arrangement having similar effect, in each case, with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all Person who is not an Affiliate 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 propertyHolder;
(iv) transfer any seek, alone or jointly or in concert with others, (i) to requisition or call a meeting of the economic interest in shareholders the Shareholder Owned Shares Company, (ii) to obtain representation on, or enter into nominate or propose the nomination of any transaction that has such effectcandidate for election to, the Board, or (iii) to effect the removal of any member of the Board or otherwise alter the composition of the Board;
(v) acquireenter into any discussions, offer to acquire, agreements 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 understandings with any Person with respect to or in contemplation of the voting offoregoing, or advise, assist, knowingly support or knowingly encourage any Person to take any action inconsistent with the foregoing; or
(vi) unless required by any applicable law (including without limitation, for the avoidance of doubt, any voting securities of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholdersapplicable stock exchange rules), 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 todisclosure of any consideration, intention, plan 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 arrangement inconsistent with any of the foregoing;
(x. Notwithstanding anything to the contrary in Section 4(f), the Company acknowledges and agrees that the provisions of Section 4(f) 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 shall immediately terminate if both 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"): conditions occur:
(i) The Board publicly supports the nomination or solicitation of a pledge Board member by any cannabis licensed producer, any affiliate of Shareholder Owned Shares required under a cannabis licensed producer, or any credit facility person acting in existence on concert with a cannabis licensed producer, other than the date hereof if such transferee agrees in writing reasonably satisfactory to Holder or an affiliate of the Parent to be bound and subject to the terms and provisions of this Agreement, Holder; and
(ii) Transfers to At the time of appointing or electing the nominee described in (1), the Board does not simultaneously appoint or elect 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 nominee 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)Holder.
(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: Support Agreement (High Tide Inc.)
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 Except as contemplated by our discussions, as contemplated by this Agreement or as disclosed by Inland, in accordance with the terms of a Transaction Agreement or the prior written approval by the Board of Directors of CapLease, or pursuant to agreements or arrangements in existence as 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 this Agreement, such Shareholder subject to the terms of this Agreement, you shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by during the terms period commencing on the date of this Agreement or and continuing until twelve (12) months after termination of negotiations between the Merger Agreementparties with respect to a Possible Transaction:
(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 securities of CapLease (or direct or indirect rights or options to acquire any securities of the Company or any subsidiary or division thereofother party);
(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 Securities Exchange Act of 1934, as amended) or the rules or regulations thereunder of the Securities and Exchange Commissionproxies or consents (including, without limitation, any consent to call a special meeting of stockholders) with respect to vote, securities of CapLease with regard to any matter or initiate any stockholder proposal with respect to CapLease;
(iii) seek to advise (a) control or influence the management or Board of Directors of CapLease with respect to the policies of CapLease, (b) advise, encourage or influence any Person person with respect to the voting of, of any voting securities of CapLease, or (c) induce or in any manner assist any other person to initiate (i) any stockholder proposal with respect to the Company securities of CapLease, (including by making publicly known such Shareholder’s position on ii) any matter presented to shareholders)change of control of CapLease, other than to recommend that shareholders (iii) any action for the purpose of the Company vote in favor convening a meeting of the Merger and the Merger Agreementstockholders of CapLease or (iv) any tender or exchange offer for securities of CapLease;
(vii) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viiiiv) make any public announcement with respect toor make any private written or oral proposal relating to a tender or exchange offer for securities of CapLease, a business combination (or submit other similar transaction that would result in a proposal forchange of control), sale of assets, merger, consolidation, liquidation or offer of (with or without conditions) any other extraordinary corporate transaction involving CapLease or any of its affiliates (each such transaction being referred to herein as an acquisition of the Company’s securities “Acquisition”) or assetstake any action which might require CapLease to make a public announcement regarding any Acquisition;
(ixv) deposit any securities of CapLease in a voting trust or subject any securities of the other party to any arrangement or agreement with respect to the voting of securities of the other party;
(vi) form, join or in any way participate in a “group” partnership, limited partnership, syndicate or other group (as defined or otherwise act in Section 13(d)(3concert with any other person) for the purpose of acquiring, holding, voting or disposing of securities of CapLease or taking any other actions restricted or prohibited under clauses (i) through (v) of this paragraph;
(vii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the Exchange Actforegoing;
(viii) disclose any intention, plan or arrangements inconsistent with the foregoing; or
(ix) advise, assist or encourage any other person in connection with any of the foregoing;
. Notwithstanding anything to the contrary, the obligations of this Section 11 shall terminate with respect to a party in the event there is a public announcement or it otherwise becomes publicly known that (x) seekCapLease and any person or group have entered into an agreement that, if consummated, would result in any way which may be reasonably likely to require, involve that person 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 takegroup, directly or indirectly, any actions with acquiring more than ten percent (10%) (12.5% in the purpose case 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 Hotchkis & Wiley) of the transactions contemplated by the Merger Agreementoutstanding capital stock of CapLease or, including the Mergerin any manner, or such Shareholder’s ability to perform control of its obligations under this Agreement. Notwithstanding the foregoingboard of directors (including, the following Transfers are expressly permitted under this Agreement (each such Transferwithout limitation, through a "Permitted Transfer"): (i) a pledge solicitation 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 memberproxies) or to a charitable organization if (x) the Shareholder retains voting control all or substantially all of the Shareholder Owned Shares so Transferred assets of CapLease; 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 or group has made, or has announced its intention to make, an offer to acquire (in any manner), directly or indirectly, more than ten percent (10%) (12.5% in the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions case 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 (ivHotchkis & Wiley) of the immediately preceding sentence)outstanding capital stock of CapLease or control of its board of directors (including, including in connection with without limitation, through 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 thereofsolicitation of proxies) notify Parent or all or substantially all of the consummation assets 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 shallCapLease, without further action or without the consent of the parties, be deemed Shareholder Owned Shares and subject to the provisions CapLease’s board 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 Agreementdirectors.
(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: Non Disclosure Agreement (Inland American Real Estate Trust, Inc.)
Standstill. (a) Each of Without the Shareholders hereby agrees thatCompany’s prior written consent, 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, the Investor shall cause its Subsidiaries, controlled Affiliates and Upstream Affiliates and, its and their respective Representatives to the extent acting on its or their behalf or with its or their consent 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) 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 cause or participate in, or in any way knowingly assist (collectivelyincluding, a “Transfer”without limitation, through the provision of financing), or enter into act in concert with, any contractother Person to effect or seek, option offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition of Beneficial Ownership of any securities or indebtedness of the Company or its Subsidiaries (provided, that for purposes of this clause (i), the sixty (60) day limitation of Rule 13d-3(d)(1)(i) shall be disregarded), (ii) any acquisition of material assets of the Company or its Subsidiaries, (iii) any tender or exchange offer involving the securities of the Company or its Subsidiaries or (iv) any merger, other business combination, recapitalization, restructuring, liquidation, dissolution or other agreement extraordinary transaction with respect toto the Company or its Subsidiaries (except, in each case, by way of stock dividends or consent to, a Transfer of, the record or beneficial ownership or both or voting power, other distributions made to holders of any class or all series of Capital Securities then held by the Shareholder Owned SharesInvestor or its Affiliates);
(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, or in any way participate inknowingly participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used term is defined in Rule 14a-1(1) under the rules Exchange Act) of proxies or consents (whether or not relating to the election or removal of members of the Securities and Exchange Commission) to vote, or Board); seek to advise advise, encourage, influence or influence act in concert with any Person with respect to the voting ofof any Voting Shares; initiate, propose or make any voting securities stockholder proposals, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise, or to call a meeting of the Company (including by making publicly known stockholders; knowingly induce or attempt to induce any other Person to initiate any such Shareholder’s position on any matter presented stockholder proposal or to shareholders), other than to recommend that shareholders call a meeting of the Company vote in favor stockholders; or otherwise seek to remove any member of the Merger and the Merger AgreementBoard;
(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) such term is used under the Exchange Act) ), or act in connection concert with any other Person, with respect to any securities of the Company or any of its Subsidiaries;
(iv) except through the actions of the Investor Directors (once the Investor becomes entitled to designate such Investor Directors pursuant to the Voting Agreement) and any confidential communications between the Parties or their Representatives, take any action to, or act in concert with any other Person to, or seek to direct or control the management, policies or strategy of the Company or any of its Subsidiaries or the Board in any manner or to amend the Certificate of Incorporation or By-Laws;
(v) publicly disclose or take any action that would reasonably be expected to require the Company or any of its Subsidiaries to publicly disclose any intention, plan or arrangement inconsistent with the foregoing;
(xvi) seekenter into discussions, in arrangements or understandings with any way which may be reasonably likely to requirethird party with the purpose and effect of circumventing any of the foregoing restrictions; or
(vii) request, involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have that the Company amend, modify 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 6.1 in a manner that would 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 Investor or 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)Company.
(b) Any Transfer in violation of Section 3.1(aNotwithstanding the foregoing, (i) the Investor shall be void. Each Shareholder agrees permitted to authorize and request (x) make public disclosures, including filings with the SEC (other than a Schedule 13D unless required by Law as determined by the Investor based on the advice of outside counsel), regarding the Company to notify and its investment in the Company’s transfer agent that there is a stop transfer order , consistent with customary practices of public companies regarding disclosure relating to material investments, and (y) engage in ordinary course communications with its investors and analysts, (ii) nothing in this Section 6.1 shall in any way restrict the Investor or its Affiliates from (x) selecting, removing, replacing or taking any other action with respect to any and all of its Shareholder Owned Shares the Investor Directors or the Investor Observer and that this Agreement places limits their service on the voting of its Shareholder Owned Shares.
Board or (cy) Prior taking or causing to be taken any action set forth in the proviso to the termination definition of this Agreement “Transfer” in accordance with Article I and (iii) the Investor’s entry into the Constituent Documents and the taking of any actions permitted thereby by the Investor or its terms, in the event that a Shareholder acquires record Affiliates or beneficial ownership of, its or their Representatives (including any Investor Directors 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 Investor Observer) shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, not 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 breach any provision of this Agreement.
(dc) Prior to the termination Any breach of this Agreement in accordance with its termsSection 6.1 by any Subsidiary, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join controlled Affiliate 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 Upstream Affiliate shall be deemed to be a breach 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 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. 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. 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. ▇▇▇▇▇▇ 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. (a) Each of the Shareholders hereby agrees that, from 11.1 From and after the date hereof until the earlier later of (x) the two year anniversary of the Effective Time Closing Date and (y) such time as such Stockholder and its Affiliates have, continuously for a 6-month period, been the Beneficial Owners, in the aggregate, of less than 2% of the Merger and outstanding Parent Common Stock (such later date, the termination of the Merger Agreement“Standstill Expiration Date”), such Shareholder each Stockholder shall not, and shall direct and cause its Representatives and any other Person to the extent acting on behalf of, or in concert with, it or any of its Affiliates, not to, directly or indirectly, unless absent the prior written consent of Parent, do any of the following (i) specifically requested by Parent or (ii) expressly contemplated by facilitate or encourage any other Person to do any of the terms of this Agreement or the Merger Agreement:following):
(i) sell(A) engage in any “solicitation” (as such term is used in the proxy rules of the SEC, transferbut without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), tenderwith respect to Parent or any Parent Securities, pledgeof proxies or consents or conduct any non-binding referendum with respect to the election or removal of directors or any other matter or proposal to be voted on by holders of Parent Securities, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign (B) make any public statement in support of any third-party solicitation with respect to Parent or otherwise dispose of Parent Securities or (whether by merger, operation of Law or otherwiseC) (collectively, become a “Transfer”), participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or enter into any contract, option or other agreement consents with respect to, to Parent 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 Securities;
(ii) enter into knowingly encourage, advise or influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, with respect to the voting agreement, or the giving or withholding of any proxy, consent or power of attorney with respect toother authority to vote involving Parent or Parent Securities, including any binding or deposit into a voting trust, the Shareholder Owned Sharesnon-binding referendum;
(iii) enter into form, join or participate in any short sale way in any “group” as defined pursuant to Section 13(d) of the Exchange Act, 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 propertyany Parent Securities;
(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 knowingly participate inwith any other Person, directly or indirectly, in any “solicitation” of “proxies” offer or proposal that would reasonably be expected to result in any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or similar transaction involving Parent or its securities or assets;
(as such terms are used v) (A) seek or propose, alone or in the rules of the Securities and Exchange Commission) to voteconcert with others, election or appointment to, or seek to advise representation on, the board of directors of Parent or influence any Person with respect to nominate or propose the voting nomination of, or recommend the nomination of, any voting securities candidate to the board of the Company directors of Parent (including except as expressly contemplated 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 seek or propose, alone or in concert with others, the removal of any member of the board of directors of Parent, (C) seek or propose, alone or in concert with others, to call a meeting of the Company stockholders of Parent, (D) seek or propose, alone or in concert with others, to control the management policies of Parent; (E) make or be the proponent of any shareholder proposal under (pursuant to Rule 14a-8 under the Exchange ActAct or otherwise) for consideration by Parent’s stockholders, (F) enter into any Voting Arrangement or subject any Parent Securities to any Voting Arrangement, or (G) make any demand or request for stock list materials or other books and records of Parent under any applicable statutory or regulatory provisions providing for stockholder access to books and records (including all rights under Section 220 of the DGCL);
(vi) initiate knowingly encourage or participate in any “vote no,” “withhold” or similar campaign as it relates to Parent; or
(vii) commence, encourage or support any derivative action in the name of Parent, or any class action against Parent or any of its officers or directors in order to, directly or indirectly, effect any of the actions expressly prohibited by this Section 11
(viii) make any public announcement with respect to, request or submit a any proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of including to amend 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 terms of this Section 3.1 amended, modified or waived;
(xi11) 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 may reasonably be expected to have the effect of preventing, impeding, interfering with result in or adversely affecting the consummation require public disclosure by any Party regarding any of the transactions contemplated by the Merger Agreementtypes of matters set forth in this Section 11; or
(iv) publicly disclose any intention, including the Mergerplan or arrangement, or such Shareholder’s ability enter into any negotiations, agreements or understandings with any third party, 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 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 action inconsistent with any 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 AgreementSection 11.1; provided, and (iv) Transfers notwithstanding the execution of any Joinder, no shares of Parent Common Stock transferred by the Stockholder 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 Person (other than a Permitted Transfer described in clause (iv) an Affiliate 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(aStockholder) shall be void. Each Shareholder agrees subject to authorize and request this Section 11.
11.2 The provisions set forth in Section 11.1 shall not limit the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all actions of its Shareholder Owned Shares and that this Agreement places limits any director on the voting board of its Shareholder Owned Shares.
(c) Prior to the termination directors of this Agreement Parent solely in accordance with its terms, in the event that such director’s capacity as 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 director of the partiesboard of directors of Parent, be deemed Shareholder Owned Shares and recognizing that such actions are subject to the provisions of this Agreement, such director’s fiduciary duties to Parent 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 Agreementits stockholders.
(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: Voting and Support Agreement (Tempur Sealy International, Inc.)
Standstill. (a) Each of the Shareholders The Investor hereby agrees that, until the later of three (3) years from and after the date hereof until of this Agreement and the earlier date of termination or expiration of the Effective Time Selection Term (as defined in the Research Collaboration and License Agreement) (the "Standstill Period"), unless the Investor shall have been specifically invited in writing by the Company, neither the Investor nor any of the Merger and the termination of the Merger Agreement, such Shareholder shall notits Affiliates will in any manner, directly or indirectly: (a) effect or seek, unless offer or propose to effect, or cause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose to effect or participate in, (i) specifically requested by Parent any acquisition of any securities of the Company, other than an acquisition (as a result of open market or private purchases or purchases pursuant to Sections 17 and 19 hereof) that results in the Investor and its Affiliates beneficially owning (as defined in Rule 13d-3 of the Exchange Act) less than 20% of the total outstanding voting securities of the Company; (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, or consent to, a Transfer of, business combination involving 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;
Company; (iii) enter into any short sale recapitalization, restructuring, liquidation, dissolution or 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 "solicitation" 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; (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 under the Exchange Act) with respect to any securities of the Company (other than any "group" comprised solely of Affiliates of the Investor); (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company (other than as permitted by the terms of this Agreement, the Stock Purchase Agreement or the Research Collaboration and License Agreement); or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, it shall not be a violation of the provisions of this Section 18 if the Investor and its Affiliates beneficially own (as defined in Rule 13d-3 of the Exchange Act) 20% or more of the total outstanding voting securities of the Company as a result of a Reduction in Outstanding Securities (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 Agreement20 below).
(b) Any Transfer The restrictions in violation of Section 3.1(a18(a) shall be void. Each Shareholder agrees terminate upon the earliest to authorize and request occur of: (i) 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 receipt by the Company, or the approval public announcement, of a bona fide unsolicited Acquisition Proposal (as defined below) by any Person or group (as defined under the Exchange Act); provided, however, that the restrictions in Section 18(a) shall be reinstated if such bona fide unsolicited Acquisition Proposal is withdrawn or terminated prior to the completion of the Merger Agreement transaction contemplated by such Acquisition Proposal; (ii) the commencement of a "going private" transaction subject to Rule 13e-3 under the Exchange Act involving the Company; provided, however, that the restrictions in Section 18(a) shall be reinstated if such "going private" transaction is withdrawn or terminated and is not completed; (iii) any Person or group (as defined under the Exchange Act) other than the Investor or any of its Affiliates becoming the beneficial owner of 20% (in number or voting power) or more of the total outstanding voting securities of the Company; (iv) delivery by the Company Boardof the notice contemplated in Section 18(c); provided, breaches any fiduciary duty however, that the restrictions in Section 18(a) shall be reinstated if the Company notifies the Investor that the Company no longer expects to enter into a definitive agreement with respect to such transaction contemplated by such Acquisition Proposal; (v) the individuals who on the date hereof constituted the Board of Directors of the Company (together with any new directors whose election by such Board of Directors or nomination for election by the stockholders of the Company was approved by a majority of the directors of the Company then still in office or whose election or nomination for election was previously so approved by the directors in office on the date hereof, other than any member thereof director designated by Person or which otherwise challenges group (as defined under the Merger Exchange Act) that has made or entered into an agreement with respect to an Acquisition Proposal) ceasing for any reason to constitute a majority of the Board of Directors of the Company; (vi) the breach by the Company of Section 18(c); or (vii) the termination of this Agreement. If the restrictions in Section 18(a) are terminated and reinstated as set forth above, they shall again terminate in accordance with this Section 18(b).
(c) The Company shall notify Investor no later than ten (10) Business Days prior to entering into any definitive agreement with respect to a transaction that is the subject of an Acquisition Proposal.
(d) Notwithstanding anything to the contrary contained in this Section 18, during the Standstill Period the Investor shall be permitted to make requests to the Board of Directors or the Company to amend or waive any of the limitations set forth in Section 18(a).
Appears in 1 contract
Sources: Investor Rights Agreement (Alnylam Pharmaceuticals, Inc.)
Standstill. (a) Each In consideration for being furnished with the Evaluation Material, you agree that, during the Standstill Period, unless a Representative of the Shareholders hereby agrees thatCompany shall otherwise specifically request in writing in advance, from you shall not, and after shall cause the date hereof until GD Companies and your directors, officers, employees, in each case, only to the earlier extent acting on your behalf or on behalf of the Effective Time GD Companies, not to (and, subject to the foregoing, you and they will not assist or form a group (a “Schedule 13D Group”) 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“Exchange Act”), such Shareholder shall notact in concert or participate with or encourage other persons to), directly or indirectly, unless (iA) specifically requested by Parent acquire 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, seek, propose or agree to acquire, directly by means of a purchase, tender or indirectlyexchange offer, by purchase business combination or otherwisein any other manner, beneficial ownership of any securities or material assets of the Company, including rights or options to acquire such ownership (other than the acquisition of securities constituting less than 1% of the Company’s then outstanding voting securities), (B) seek or propose to influence, advise, change or control the management, board of directors, governing instruments or policies or affairs of the Company or any subsidiary or division thereof;
(vi) makeof its affiliates, or in any way participate inincluding, directly or indirectlywithout limitation, any “solicitation” by means of “proxies” a solicitation of proxies (as such terms are used defined in the rules Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Securities Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and Exchange Commissionincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person (other than your Representatives) relating to voteany of the matters set forth in this Agreement, except as otherwise permitted by this Agreement, or seek seeking to influence, advise or influence direct the vote of any Person with respect to the voting of, any holder of voting securities of the Company or its affiliates or making a request to amend or waive this provision or any other provision of this Section 3, or (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 disclosure, or take any action that could require the Company to make any public disclosure, 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"): (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 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 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 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 Carlyle 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 Carlyle 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 1 contract
Sources: Voting, Support and Standstill Agreement (Carlyle Group Inc.)
Standstill. (a) Each of During the Shareholders hereby agrees that, from and after period beginning on the date hereof until and the earlier of the Effective Time of the Merger Closing and the termination of this Agreement in accordance with Article IX, each Parent (as such term is defined in the Merger Company Operating Agreement, such Shareholder ) shall not, and shall cause its other Parent Entities (as such term is defined in the Company Operating Agreement) not 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, 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 participate in, facilitate or encourage any other Person to effect or seek, offer or propose (collectivelywhether publicly or otherwise) to effect or participate in, a “Transfer”(A) any acquisition of any securities (or beneficial ownership thereof or economic interests therein), or enter into rights or options to acquire any contract, option or other agreement with respect to, or consent to, a Transfer of, the record securities (or beneficial ownership thereof or both or voting powereconomic interests therein), of the other Parent, or any or all assets of the Shareholder Owned Shares;
other Parent or any of its Subsidiaries (iiincluding securities of or held by such Subsidiaries) enter into constituting a significant portion of the consolidated assets of such other Parent, (B) any voting agreementtender offer or exchange offer, proxymerger, consent consolidation or power other business combination involving the other Parent or any of attorney with respect toits Subsidiaries, or deposit into any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a voting trustsignificant portion of the consolidated assets of the other Parent, the Shareholder Owned Shares;
(iiiC) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock other 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;
(iv) transfer any of the economic interest in the Shareholder Owned Shares its Subsidiaries or enter into any transaction that has such effect;
(vD) 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 (other Parent or any of its Subsidiaries, including by making publicly known such Shareholder’s position on any matter presented soliciting consents or taking other action with respect to shareholders), other than to recommend that shareholders the calling of a special meeting of the Company vote in favor stockholders of the Merger and the Merger Agreement;
other Parent or any of its 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;
(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 the other Parent; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, board of directors or policies of the other Parent or to obtain representation on the board of directors of the other Parent; (iv) disclose or direct any Person to disclose, any intention, plan or arrangement inconsistent with the foregoing; (v) advise, assist or encourage or direct any Person to advise, assist or encourage any other Persons in connection with any of the foregoing;
; or (xvi) seek, in request a waiver or amendment of 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 Agreementforegoing clauses (i) through (v). Notwithstanding the foregoing, a Parent’s chief executive officer may make a non-public, confidential, oral, non-binding proposal regarding a transaction of the following Transfers are expressly permitted under this Agreement type described in clauses (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 Agreementi)(A), (ii) Transfers to a family member of a Shareholder (or to a trust for the benefit of a family memberB) 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 (ivC) of the immediately preceding sentence)sentence to the other Parent’s chief executive officer, including in connection with a Shareholder Owned Shares Proposal provided that the Parent providing such proposal (subject 1) does not make such proposal for the purpose of causing the receiving Parent 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 make public disclosure of such Permitted Transfer proposal and (2) immediately withdraws such proposal and does not further pursue such proposal or any proposal that is substantially similar to such proposal if the material details thereof, including the identity other Parent’s board of the acquiror, the price, directors has been apprised of such proposal and the date of transfer, and shall provide evidence reasonably satisfactory to such Parent that is not interested in exploring any 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 A Parent and its other Parent Entities shall be released from the provisions of Section 3.1(a5.16(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(i) the other Parent enters into, or publicly announces an intention to pursue, one or more related transactions or agreements providing for the power acquisition by a Third Party of more than fifty percent (50%) of its voting securities or all or substantially all of its assets or (ii) (A) a tender or exchange offer is commenced by a Third Party to vote acquire fifty percent (50%) or direct more of the outstanding voting of, any additional shares securities of Company Common Stock the other Parent and (B) such other Parent (1) publicly recommends that its stockholders accept such offer or other voting interests with respect to (2) (x) does not within ten Business Days publicly recommend that its stockholders reject such offer or (y) publicly recommends that its stockholders reject such offer but subsequently publicly withdraws such recommendation. If the CompanyParent that is the subject of a tender or exchange offer publicly recommends that its stockholders reject the offer, such Shareholder shall notify Parent promptly of may not (I) subsequently publicly recommend that its stockholders accept such acquisition. Such shares of Company Common Stock offer 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 publicly withdraw its recommendation that its stockholders reject such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and offer unless such shares of Company Common Stock or voting interests shall automatically become subject offer remains open for at least twenty (20) Business Days following such change in recommendation (either pursuant to the terms of this Agreement.
such offer or by action of such Parent preventing its consummation during such twenty (d20) Prior Business Day period) or (II) prior to the termination end of this Agreement in accordance with such twenty (20) Business Day period, enter into an agreement providing for the acquisition of more than fifty percent (50%) of its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join outstanding voting securities or voluntarily aid any Action in law all or in equity, in any court or before any Government, which alleges substantially all of its assets by the Person making such offer unless such agreement provides that the execution acquisition contemplated by it may not be consummated for at least another twenty (20) Business Days from the date such agreement is executed and delivery such agreement allows the Parent that is the subject of the Merger Agreement tender offer or exchange offer to provide information to and participate in discussions or negotiations with the other Parent and its representatives regarding, and to terminate such agreement without restriction or the payment of any fee or other amount (other than a break-up or similar fee not exceeding 1% of the equity value of such Parent) in order to enter into an agreement with the other Parent or any of its Parent Entities providing for, the acquisition by the Company, other Parent or the approval its Parent Entities of more than fifty percent (50%) of the Merger Agreement by the Company Board, breaches any fiduciary duty outstanding voting securities or all or substantially all of the Company Board or any member thereof or which otherwise challenges the Merger Agreementassets of such Parent.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby JCP agrees that, from and after the date hereof of this Agreement until the earlier expiration of the Effective Time Standstill Period (as defined below), neither it nor any of the Merger its Affiliates or Associates will, and the termination it will cause each of the Merger Agreement, such Shareholder shall notits Affiliates and Associates (as defined below) 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) sellsubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of as amended (whether by merger, operation of Law the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board (collectively, a “Transfer”including by way of Rule 14a-11 of Regulation 14A), 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 Sharesthan as expressly permitted by this Agreement;
(ii) enter into engage in, directly or indirectly, any voting agreement“solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the Board, proxyor recommend or request or induce or attempt to induce any other person to take any such actions, consent or power of attorney seek to advise, encourage or influence any other person with respect to, to the voting of the Common Stock (including any withholding from voting) or deposit into grant a proxy with respect to the voting trust, of the Shareholder Owned SharesCommon Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) enter into seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any short sale books and records of the Company;
(iv) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or 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 to the Shareholder Owned Shares extent such a group may be deemed to result with the Company or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares its Affiliates or enter into any transaction that has such effectAssociates as a result of this Agreement;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(viii) other than at the direction of the Board or any committee thereof and except in connection with an Opposition Matter (as defined below), seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(ix) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any assets 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(B) Common Stock of the Company representing in the aggregate (amongst JCP and its Affiliates and Associates) in excess of 9.9% of the Company’s outstanding Common Stock; provided, however, nothing herein shall prevent JCP from confidentially seeking a waiver to acquire in excess of 9.9% of the Company’s outstanding Common Stock;
(ixx) formdisclose publicly, join or in any way participate privately in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with any of the foregoing;
(xxi) seek, in take any way which may be reasonably likely to require, involve action challenging the validity or trigger public disclosure enforceability of such request pursuant to applicable Law, to have any provision provisions of this Section 3.1 amended, modified or waived;3; or
(xixii) otherwise takeenter into any agreement, directly arrangement or indirectly, understanding concerning 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 foregoing (other than a Permitted Transfer described in clause (ivthis Agreement) or encourage or solicit any person to undertake 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 activities.
(b) Any Transfer As used 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.Agreement:
(ci) Prior to the termination of this Agreement in accordance with its terms, in terms “Affiliate” and “Associate” shall have 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 respective meanings 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 Rule 12b-2 promulgated by the CompanySEC under the Securities Exchange Act of 1934, or as amended (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.“Exchange Act”);
Appears in 1 contract
Sources: Settlement Agreement (Jamba, Inc.)
Standstill. (a) Each During the Covered Period (unless specifically otherwise requested in writing by the Company, acting through a resolution of a majority of the Shareholders hereby agrees thatCompany's directors), 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 Designee shall not, 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) 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 defined in or used in under the rules of the Securities Exchange Act and Exchange CommissionRegulation 14A thereunder) or consents to vote, or seek to advise advise, encourage or influence (including, for the avoidance of doubt, by encouraging or participating in any Person "withhold" or similar campaign) any person with respect to the voting of, of any voting securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (including by making publicly known collectively, "securities of the Company") with respect to the election or removal of directors or stockholder proposals, or become a "participant" (as such Shareholder’s position on term is defined in or used under the Exchange Act and Regulation 14A thereunder) in any matter presented contested solicitation for the election of directors with respect to shareholders), the Company (other than a solicitation or acting as a participant in support of all of the nominees of the Board at any stockholder meeting) or make, be the proponent of or cause any person to recommend that shareholders initiate any stockholder proposal pursuant to Rule 14a-8 under the Exchange Act, the Company's Bylaws or otherwise;
(ii) form, join, encourage, influence, advise or in any way participate in any group (within the meaning of Section 13(d)(3) under the Exchange Act) with any person (any such person, a "Third Party") with respect to any securities of the Company vote or otherwise in favor any manner agree, attempt, seek or propose to deposit any securities of the Merger and Company in any voting trust or similar arrangement, or subject any securities of the Merger AgreementCompany to any arrangement or agreement with respect to the voting thereof;
(viiiii) submit effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any of their respective securities (each, an "Extraordinary Transaction"), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Designee of any securities of the Company into any tender or exchange offer, or vote with respect to any Extraordinary Transaction, that has been approved by the Board;
(iv) (A) call, seek to call or request the call of any meeting of stockholders, including by written consent, (B) seek representation on, or nominate any candidate to, the Board, except as specifically set forth in Section 1, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, or (F) make a request for any stockholder list or other books and records of the Company, whether pursuant to applicable law, the Company's Bylaws or otherwise;
(v) except in connection with the enforcement of this Agreement or passive participation as a class member in any class action (which, for the avoidance of doubt, shall not include participation as a name or lead plaintiff) with respect to any event or circumstance occurring prior to the date of this Agreement, initiate, encourage or participate in any litigation against the Company or any shareholder of its subsidiaries or their respective directors or officers, or in any derivative litigation on behalf of the Company, except for testimony in any legal proceeding that may be required by law;
(vi) take any action in support of or make any proposal under Rule 14a-8 under or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors, the removal of any directors, or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend of the Company, (C) any other material change in the Company's management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company's Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect toto the Board, or submit a proposal forthe Company, or offer of (with or without conditions) any extraordinary transaction involving an acquisition subsidiary of the Company’s , the Company's officers or directors, policies or affairs, any securities of the Company, the Company's assets or assetsthis Agreement that is inconsistent with the provisions of this Agreement;
(ix) formenter into any negotiations, join agreements or in understandings with any way participate in a “group” (as defined in Section 13(d)(3) under Third Party with respect to any of the Exchange Act) in connection foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party 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;; or
(x) 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 1 contract
Sources: Nomination and Standstill Agreement (Charlie's Holdings, 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 (i) sellone (1) year after the Closing and (ii) the date the Purchaser is no longer entitled to designate one director to the Board of Directors pursuant to Section 4.1, transferwithout the prior written consent of the Company, tenderthe Purchaser will not at any time, pledgenor will it cause any of its Affiliates to: (a) effect or seek, encumberoffer or publicly propose to effect, assignor publicly announce any intention to effect or cause or participate in or in any way assist, hypothecatefacilitate or encourage any other person to effect or seek, 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”i) any acquisition 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;
Company, other than by Purchaser and its Affiliates in a transaction pursuant to which Purchaser and its Affiliates would beneficially own no more than five percent (5%) in the aggregate of the outstanding shares of the Company’s Common Stock (excluding conversion of the shares of Series A Preferred Stock and any Conversion Shares then held by the Purchaser or such Affiliate) after such transaction or any exercise of the Purchaser’s rights to acquire New Securities pursuant to Article VI; (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;
its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (vib) 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; (ii) 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; (iii) 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; or (including by making publicly known such Shareholder’s position on any matter presented to shareholders)iv) 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; (c) 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); (d) publicly submit any provision shareholder proposal to the Company, or (e) publicly propose any change of control or other material transaction involving the Company; it being understood that 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 or Common 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 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 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. For a period of one (a1) Each of the Shareholders hereby agrees that, years from and after the date hereof until of this Agreement (the earlier of the Effective Time of the Merger and the termination of the Merger Agreement“Standstill Period”), such Shareholder Interested Party shall not, nor shall any of its affiliates or subsidiaries or any of its Representatives acting on its behalf, directly or indirectly, unless without the prior written approval of Company:
(a) make any statement or proposal to the board of directors of Company, any of the Company Representatives or any of Company’s stockholders regarding, or effect or seek, offer or propose 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 to effect or participate in (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) specifically requested by Parent any acquisition of, or any tender or exchange offer for, voting securities of Company (or beneficial ownership thereof), or rights or options to acquire voting securities (or beneficial ownership thereof) of Company, or any material portion of the assets, indebtedness or businesses of Company or any of its subsidiaries, or (ii) expressly contemplated by the terms of this Agreement any consolidation, business combination, acquisition, merger or the Merger Agreement:
(i) sellsimilar business combination involving Company, 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 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;
Company, (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, vote any voting securities of Company or consents to any action from any holder of any voting securities of Company or seek to advise or influence any Person person with respect to the voting of, of or the granting of any consent with respect to any voting securities of Company, or (v) any proposal, arrangement, or other statement that is inconsistent with the Company (terms of this Agreement, 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 Agreementthis Section 9;
(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 Securities Exchange ActAct of 1934, as amended) in connection with the voting securities of Company;
(c) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company or to obtain representation on the board of directors of Company;
(d) make any public announcement with respect to the restrictions of this paragraph; and/or
(e) advise, assist or encourage, or direct any person to advise, assist or encourage any other persons, in connection with any of the foregoing;
. In addition, Interested Party agrees that, during the Standstill Period, it shall not (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 of this Section 3.1 amended, modified or waived;
(xi) otherwise takethat Company, directly or indirectly, amend or waive any actions with the purpose of avoiding or circumventing any provision provisions 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, 9 (including the Mergerthis paragraph), or such Shareholder’s ability (ii) take any action that might require Company to perform its obligations under make a public announcement with respect to matters referred to in this AgreementSection 9. Notwithstanding the foregoingforegoing provisions of this Section 9, the following Transfers are expressly permitted under Standstill Period shall expire and the restrictions set forth in this Agreement (each such Transfer, a "Permitted Transfer"): Section 9 shall terminate and be of no further force and effect if: (i) Company enters into a pledge definitive agreement with respect to a transaction involving the acquisition of Shareholder Owned Shares required under any credit facility in existence on more than 50% of Company’s voting securities or 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 of this AgreementCompany’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance, or otherwise), or (ii) Transfers any person or “group” (as defined under the Securities Exchange Act of 1934, as amended) publicly announces or commences a tender or exchange offer to a family member acquire more than 50% 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 Sharessecurities.
(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. (ai) Each of The SVB Partners Parties each acknowledge and represent that the Shareholders hereby agrees thatinvestment in BFIN is not intended to constitute a “controlling” investment for federal banking law purposes and, from accordingly, subject in all cases to Section 2(iii) below with respect to M▇. ▇▇▇▇▇▇▇▇, agree that during the Standstill Period (as defined below), the SVB Partners Parties and after the date hereof until the earlier of the Effective Time of the Merger their affiliates or associates will not (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 BFIN:
(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;
(v1) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, tender, exchange, gift, through the acquisition of control of another person, by joining a partnership, limited partnership or syndicate or other “group” (within the meaning of such term in Section 13(d) of the Exchange Act) or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire, or agree to acquiresecurities convertible into or exchangeable for (collectively, directly or indirectly, by purchase or otherwisean “Acquisition”), any assets securities of BFIN, such that as a result of such of such Acquisition, the SVB Partners Parties would maintain beneficial ownership in excess of 9.99% of the Company or any subsidiary or division thereofoutstanding shares of BFIN common stock;
(vi2) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (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 AgreementBFIN;
(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;
(ix3) 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 SVB Partners Parties) with respect to any securities of BFIN (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the SVB Partners 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 BFIN in any voting trust or similar arrangement, or subject any securities of BFIN to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(4) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (a) any of the assets, tangible and intangible, of BFIN or (b) direct or indirect rights, warrants or options to acquire any assets of BFIN;
(5) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any securities or assets of BFIN;
(6) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of BFIN or any rights decoupled from the underlying securities of BFIN held by any SVB Partners Party to any person or entity not a (a) party to this Agreement, (b) member of the BFIN Board of Directors, (c) officer of BFIN or (d) a SVB Partners Party affiliate (a “Third Party”) that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 9.9% of the shares of BFIN common stock outstanding at such time, except in a transaction approved by the Board or in ordinary course public capital markets sale transactions;
(7) otherwise act, alone or in concert with others, to seek to offer to BFIN or any of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with BFIN or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of BFIN or the Bank or nominate any person as a director of BFIN who is not nominated by the then incumbent directors (provided that if there is a vacancy on the BFIN Board of Directors the SVB Partners Parties may submit suggestions on a confidential basis to the BFIN Board of Directors or the Corporate Governance and Nominating Committee of the BFIN Board of Directors for nominees to the Board of Directors pursuant to the nomination policy adopted by the Board of Directors), or propose any matter to be voted upon by the stockholders of BFIN;
(8) seek the removal of any member of the Board, conduct a referendum of stockholders or make a request for any stockholder list or other BFIN books and records;
(9) 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 BFIN; (b) seeking to have BFIN waive or make amendments or modifications to BFIN’s Articles of Incorporation or Bylaws, or other actions, that may impede or facilitate the acquisition of control of BFIN by any person; (c) causing a class of securities of BFIN 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 BFIN to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(10) make any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged (a) any of the proposals described in connection this Agreement or (b) BFIN or affiliates thereof, and any of its current or former officers or directors;
(11) 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 with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(x12) seekexercise or attempt to exercise a controlling influence (determined in a manner consistent with the public guidance issued by the primary federal banking regulator of BFIN) over the management or policies of BFIN, in or any way which may be reasonably likely of its affiliates;
(13) have or seek to require, involve have more than one representative of the SVB Partners Parties serve on the Board of Directors of BFIN;
(14) permit any representative of the SVB Partners Parties who serves on the Board of Directors of BFIN to serve as the chairman of the Board of Directors of BFIN;
(15) have or trigger public disclosure of such request pursuant to applicable Law, seek to have any provision employee or representative of this Section 3.1 amendedany SVB Partners Party serve as an officer, modified agent, or waivedemployee of BFIN;
(xi16) otherwise taketake any action that would cause BFIN to become a subsidiary of any SVB Partners Party;
(17) propose a director or slate of directors in opposition to a nominee or slate of nominees proposed by the management or Board of Directors of BFIN;
(18) enter into or seek or propose to enter into any agreement with BFIN that substantially limits the discretion of BFIN’s management over major policies and decisions, directly including, but not limited to, policies or indirectlydecisions 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;
(19) dispose or threaten to dispose (explicitly or implicitly) of equity interests of BFIN in any manner as a condition or inducement of specific action or non-action by BFIN; and
(20) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions restricted or prohibited under clauses (1) through (19) of this Paragraph 2, or publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2.
(ii) At any BFIN annual meeting of stockholders during the Standstill Period, the SVB Partners Parties agree (1) to vote all shares of BFIN they or any of them beneficially own in favor of the nominees for election or reelection as director of BFIN selected by the Corporate Governance and Nominating Committee of the Board of Directors of BFIN and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any BFIN stockholder to a vote of the BFIN stockholders, to vote all of the BFIN shares they beneficially own in accordance with the purpose recommendation of avoiding the BFIN Board of Directors with respect to any such stockholder proposal.
(iii) Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or circumventing affect: (1) any provision action or inaction by M▇. ▇▇▇▇▇▇▇▇ in his capacity as a member of BFIN’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a board member; or (2) the ability of the SVB Partners Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Section 3.1 Agreement directly with the Chairman and Chief Executive Officer of BFIN or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation other members of the transactions contemplated by board of directors of BFIN or senior executive management of BFIN in a manner consistent with the Merger Agreement, including practices of 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 BFIN Board of Directors.
(each such Transfer, a "Permitted Transfer"): (iiv) a pledge of Shareholder Owned Shares required under any credit facility in existence The “Standstill Period” shall begin on the date hereof if such transferee agrees and shall remain in writing reasonably satisfactory to full force and effect until the Parent to be bound and subject to date that is the terms and provisions earliest of (1) the date that is 10 days following the date that BFIN materially breaches its obligations under Section 1 of this Agreement, provided that such breach has not been cured prior to the expiration of such 10-day period; (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 (x2) 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 date 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 is three months from the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer M▇. ▇▇▇▇▇▇▇▇ (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 termsor, 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 partiesdeath, disability or resignation of M▇. ▇▇▇▇▇▇▇▇, a substitute nominee of the SVB Partners Parties, whose substitution shall 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 BFIN Board of Directors in its sole discretion) ceases to be a member of the Company BFIN Board; provided, however, with respect to this clause (2), M▇. ▇▇▇▇▇▇▇▇ (or the substitute representative of the SVB Partners Parties) and the SVB Partners Parties shall be permitted to exercise their respective rights, as stockholders of BFIN and in accordance with all limitations generally applicable to stockholders of BFIN, to nominate and pursue the election of M▇. ▇▇▇▇▇▇▇▇ (or the substitute representative of the SVB Partners Parties) or Mr. M▇▇▇▇▇ ▇▇▇▇▇ to serve as a member of the BFIN Board of Directors immediately after M▇. ▇▇▇▇▇▇▇▇ (or the substitute representative of the SVB Partners Parties) ceases to be a member of the BFIN Board, breaches (3) the date immediately following the Company’s 2026 Annual Meeting of Stockholders; provided, however that, in any fiduciary duty event, Section 2(i) shall survive for so long as any designee of the Company Board or SVB Partners Parties serves as a member of the BFIN Board, and (4) the date on which BFIN, at the option of BFIN, elects to terminate the Standstill Period by written notice to the SVB Partners Parties, which election may occur any member thereof or which otherwise challenges time after the Merger Agreementbeneficial ownership of the SVB Partners Parties decreases below 5% of the outstanding shares of BFIN common stock.
Appears in 1 contract
Sources: Standstill Agreement (Strategic Value Investors LP)
Standstill. For a period of twelve (a12) Each of the Shareholders hereby agrees that, from and months after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger this Agreement, such Shareholder unless it shall nothave been specifically invited in writing by the other Party, neither Party nor any of its affiliates will in any manner, directly or indirectly, unless (i) specifically requested by Parent effect or seek, offer or propose (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 whether publicly or otherwise dispose of and whether or not subject to conditions) 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 by merger, operation of Law publicly or otherwiseotherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (collectively, a “Transfer”)a) the 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, any securities, bank debt, liabilities, claims or consent toobligations of the other Party or any of its affiliates (or any rights, a Transfer ofoptions or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the record price or beneficial ownership or both or voting power, value of any or all securities of the Shareholder Owned Shares;
other Party or any of its affiliates, including without limitation any swaps or other derivative arrangements (ii“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) enter into pursuant to any voting agreement, proxyarrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), consent and, in each case, whether or power not any of attorney with respect tothe foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or deposit into otherwise; (b) any tender or exchange offer, merger, consolidation, business combination or acquisition or disposition of a voting trustsignificant portion of the consolidated assets of the other Party or any of its affiliates; (c) any recapitalization, the Shareholder Owned Shares;
(iii) enter into any short sale restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock other Party 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 its affiliates; or enter into any transaction that has such effect;
(vd) 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” to vote (as such terms are used in the rules Regulation 14A of the Securities and Exchange Commission) Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to vote, the other Party or seek to advise or influence any Person person with respect to the voting of, of any voting securities of the Company other Party; (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” group with respect to the common shares or any other voting securities of the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (as defined iii) otherwise act, alone or in Section 13(d)(3concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party or to obtain representation on the Board of Directors of the other Party; (iv) under take any action which might result in the Exchange Actother Party being obligated to make a public announcement regarding any of the types of matters set forth in this paragraph; (v) in connection enter into any discussions, arrangements, understandings or contracts with any third party with respect to any of the foregoing;
; or (xvi) seekdisclose (whether or not publicly) any intention, plan or arrangement regarding any of the matters referred to in this paragraph. Each Party also agrees during such twelve (12) month period not to request, or solicit or induce another person to request, the other Party (or any way which may be reasonably likely to requireof its Representatives), involve directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend, waive or publicize any provision of this Section 3.1 amended, modified or waived;
11 (xi) otherwise takeincluding this sentence). In the event that OMP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, directly or indirectly, any actions with of not less than a majority of the purpose outstanding voting equity of avoiding OMP in the election of directors or circumventing all or substantially all of the assets of OMP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing11, 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 Company may, without the separate invitation, consent or authorization of OMP, make (A) a non-public, private Acquisition proposal to OMP for consideration by the Shareholder Owned Shares so Transferred Board of Directors of OMP or (B) a public Acquisition proposal (provided, that, with respect to this clause (B), such proposal shall first be made privately to the Board of Directors of OMP and shall not be made publicly unless and until either (I) the Board of Directors or OMP fails to enter into good faith negotiations with the Company within 3 business days after receipt of such proposal or (II) if the Board of Directors or OMP has entered into negotiations with the Company within such 3 business day period, OMP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (y) such transferee agrees the restriction on the use of Confidential Information provided in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions Section 2(b) 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 Agreement shall not prevent 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 from making an Acquisition proposal pursuant to the terms hereof, an agreement in writing reasonably satisfactory foregoing clause (A) or (B). Notwithstanding anything to the Parent contrary herein, acquisitions for investment purposes only of exchange-traded funds by a Party, that own or later acquire any economic interest in, any right to direct 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 voting or disposition of, or any other right with respect to all any securities of the other Party 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 subsidiaries, shall not constitute a breach 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 AgreementSection 11.
(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, Non Competition and Non Solicitation Employment Agreement
Standstill. (a) Each During the Standstill Period, unless otherwise approved by the Board or by the Company, H▇▇▇▇▇▇ shall not, and shall cause his Associates and Representatives not to, directly or indirectly:
(i) make any public announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Shareholders hereby agrees thatCompany or any of its subsidiaries, from and after (B) any form of restructuring, recapitalization or similar transaction with respect to the date hereof until the earlier Company or any of its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such transaction involves a Change of Control (as defined below) of the Effective Time Company;
(ii) engage in, or assist in the engagement in, any solicitation of proxies or written consents to vote any Voting Securities of the Merger and Company, or conduct or assist in the termination conducting of, any type of the Merger Agreementbinding or nonbinding referendum with respect to any Voting Securities, such Shareholder shall notor assist or participate in any other way, directly or indirectly, unless in any solicitation of proxies (ior written consents) 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 from the holders 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 toVoting Securities, or deposit into otherwise become 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 “participant” 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 a “solicitation,” of “proxies” (as such terms are used defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the rules of the Securities and Exchange Commission) Act, to vote, or seek to advise or influence vote any Person with respect to the voting of, any voting securities of the Company (including by making publicly known initiating, encouraging or participating in any “withhold” or similar campaign);
(iii) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any securities of the Company, any direct or indirect rights or options to acquire any such Shareholder’s position on securities, any matter presented derivative securities or contracts or instruments in any way related to shareholders)the price of shares of Common Stock, other than or any assets or liabilities of the Company;
(iv) sell, offer or agree to recommend that shareholders sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company vote in favor or any rights decoupled from the underlying securities held by H▇▇▇▇▇▇ to any person not (A) a party to this Agreement, (B) a member of the Merger Board, (C) an officer of the Company or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock outstanding at such time;
(v) take any action in support of or make any proposal or request that constitutes or would result in: (A) advising, controlling, changing or influencing any director or the management of the Company, including, but not limited to, any plans or proposals, and/or consenting to the calling of any special meeting of stockholders to effect such plans or proposals, to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Merger Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Restated Certificate of Incorporation of the Company, as amended, and/or the Amended and Restated By-Laws of the Company (together, the “Governing Materials”), or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vi) act by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence the Company’s stockholders, management or the Board with respect to the Company’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions, or strategy or to obtain representation on the Board or seek the removal of any officer or director in any manner, except as expressly permitted by this Agreement;
(vii) submit call or seek to call, or request the Company call of, alone or in concert with others, any shareholder proposal under Rule 14a-8 under meeting of stockholders, whether or not such a meeting is permitted by the Exchange ActGoverning Materials, including a “town hall meeting”;
(viii) make deposit any public announcement shares of Voting Securities in any voting trust or subject any shares of Voting Securities to any arrangement or agreement with respect toto the voting of any shares of Voting Securities, or submit a proposal for, or offer the intention of (with or without conditions) which is to circumvent any extraordinary transaction involving an acquisition of the Company’s securities or assetsrestrictions on H▇▇▇▇▇▇ under this Agreement;
(ix) 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) in connection with respect to any of the foregoingVoting Security;
(x) seek, in demand a copy of the Company’s list of stockholders or its other books and records or make any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of Delaware providing for stockholder access to have any provision books and records (including lists of this Section 3.1 amended, modified or waivedstockholders) of the Company;
(xi) otherwise take, directly demand pursuant to Delaware Court of Chancery Rule 23.1 or indirectlyany other like statutory or regulatory provisions that the Company take any action with respect to its 2019 Stock Incentive Plan, any actions options awards or exercises made thereunder, any votes cast or to be cast in relation thereto or any other action with respect to a compensation plan or proposal made by the Company;
(xii) commence, encourage or support any derivative action in the name of the Company or any class action against the Company or any of its officers or directors, in each case with the purpose intent of avoiding or circumventing any provision the provisions of this Section 3.1 9, or which could reasonably be expected to have take any action challenging the effect validity or enforceability of preventing, impeding, interfering with or adversely affecting the consummation any of the transactions contemplated by provisions of this Section 9; provided, however, that the Merger Agreement, including foregoing shall not prevent H▇▇▇▇▇▇ from (A) bringing litigation to enforce 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, (iiB) Transfers making counterclaims with respect to a family member of a Shareholder (any proceeding initiated by, or to a trust for on behalf of, 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 Company against H▇▇▇▇▇▇, or (yC) such transferee agrees in writing reasonably satisfactory responding to the Parent or complying with a validly issued legal process that neither H▇▇▇▇▇▇ nor any of his Affiliates initiated, encouraged or facilitated;
(xiii) make any request or submit any proposal to be bound and subject to amend or waive the terms and of this Section 9 other than through non-public communications with the Company that would not be reasonably likely to trigger public disclosure obligations for any Party;
(xiv) comment publicly about or disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to any transactions involving the Company, any director or the Company’s management, policies, strategy, operations, financial results or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xv) make any inquiries about, (iii) Transfers or otherwise attempt to a third party if directly or indirectly obtain any information, whether from the transferee agrees in writing reasonably satisfactory Independent Compensation Consultant or otherwise, relating to the Parent Services Agreement or any work or services related thereto or otherwise provided by the Independent Compensation Consultant; or
(xvi) enter into any discussions, negotiations, agreements or understandings with any person with respect to be bound and subject any action H▇▇▇▇▇▇ is prohibited from taking pursuant to the terms and provisions of this AgreementSection 9, and (iv) Transfers or advise, assist, knowingly encourage or seek to the Company in persuade any person to take any action or make any statement with respect to any such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options action, or stock grants. In the event that otherwise take or cause any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) action or make any statement 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 The provisions of this Section 9 shall not limit in violation any respect the actions of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request any director of the Company in his or her capacity as such, recognizing that such actions are subject to notify such director’s fiduciary duties to the Company’s transfer agent Company and its stockholders and the Company Policies (it being understood and agreed that there is a stop transfer order with respect neither H▇▇▇▇▇▇ nor any of his Affiliates shall seek to all do indirectly through the New Director anything that would be prohibited if done by H▇▇▇▇▇▇ or his Affiliates). The provisions of its Shareholder Owned Shares and that this Agreement places limits on the Section 9 shall also not prevent H▇▇▇▇▇▇ from freely voting his shares of its Shareholder Owned SharesCommon Stock (except as otherwise provided in Section 6 hereto).
(c) Prior to During the termination Standstill Period, H▇▇▇▇▇▇ shall refrain from taking any actions which could have the effect of this Agreement in accordance with its termsencouraging, in the event that a Shareholder acquires record assisting or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or influencing 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 stockholders of the partiesCompany or any other persons to engage in actions which, be deemed Shareholder Owned Shares and subject to the provisions of this Agreementif taken by H▇▇▇▇▇▇, 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 would violate this Agreement.
(d) Prior Notwithstanding anything contained in this Agreement to the termination contrary, the provisions of Sections 1, 6 and 7 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 shall automatically terminate upon the execution and delivery consummation of the Merger Agreement a Change of Control agreed to by the Board and 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 (Cytrx Corp)
Standstill. (a) Each Until the Termination Date, except as otherwise provided in this Agreement, without the prior written consent of the Shareholders hereby agrees thatBoard, 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 Parties shall not, and shall cause their respective Affiliates not to, directly or indirectly:
(A) acquire, unless offer or seek to acquire, agree to acquire, or acquire rights to acquire (iexcept by way of stock dividends or other distributions or offerings made available to holders of Voting Securities generally on a pro rata basis or pursuant to an Extraordinary Transaction), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any securities of the Company (other than through a broad-based market basket or index), any rights decoupled from the underlying securities of the Company, that would result in the Investor Parties beneficially owning more than 4.99% of the then outstanding shares of Voting Securities;
(B) specifically requested sell, assign, or otherwise transfer or dispose of shares of Common Stock, or any rights decoupled from such shares, beneficially owned by Parent or (ii) expressly contemplated by them, other than in open market sale transactions where the terms identity of this Agreement or the Merger Agreement:purchaser is not known and in underwritten widely dispersed public offerings;
(i) sellnominate, transferrecommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) knowingly initiate, tenderencourage, pledgeassist or participate in any solicitation of proxies, encumberconsents or consent revocations in respect of any election contest or removal contest with respect to the Company’s directors; (iii) knowingly submit, assigninitiate, hypothecate, distribute, grant, gift, encumber, assign make or otherwise dispose be a proponent of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”)any stockholder proposal for consideration at, or enter into bring any contractother business before, option any Stockholder Meeting; (iv) knowingly initiate, encourage, assist or participate in any solicitation of proxies, consents or consent revocations in respect of any stockholder proposal for consideration at, or other agreement business brought before, any Stockholder Meeting; or (v) knowingly initiate, encourage, assist or participate in any “withhold” or similar campaign with respect to any proposal for consideration at, or other business brought before, any Stockholder Meeting; or (vi) call or seek to call, or request the call of, or initiate a consent solicitation or consent revocation solicitation with respect to, alone or consent toin concert with others, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned Shares;Stockholder Meeting;
(iiD) enter into any voting agreement(i) form, 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, join or in any way participate inin any group or agreement of any kind with respect to any Voting Securities, directly other than any such group or indirectlyagreement solely among the Investor Parties, (ii) grant any “solicitation” of “proxies” proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders (as such terms are used other than to the named proxies included in the rules Company’s proxy card for any meeting of the Securities and Exchange Commission) to voteCompany’s stockholders or any stockholder action by written consent or in accordance with this Agreement), or seek (iii) deposit or agree to advise deposit any Voting Securities or influence any Person securities convertible or exchangeable into or exercisable for any such securities in any voting trust, agreement or similar arrangement or otherwise subject any Voting Securities to any arrangement or agreement 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)thereof, other than to recommend any such voting trust, arrangement, or agreement that shareholders is solely among the Investor Parties; provided, however, that nothing herein shall limit the ability of an Affiliate of a member of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit Investor Parties 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” (solely among members of the Investor Parties and their Affiliates, so long as defined in Section 13(d)(3) any such Affiliate agrees to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two Business Days after disclosing that the Investor Parties has formed a group with such Affiliate;
(E) knowingly seek to advise, influence or encourage 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 any advice, influence or encouragement that is consistent with the Board’s recommendation in connection with such matter);
(F) make any request for the Company’s stockholder list materials or other books and records;
(i) make any proposal with respect to or (ii) make any statement or otherwise knowingly seek to encourage, advise or assist any person in so encouraging or advising with respect to: (A) any change in the composition, number or term of directors serving on the Board or the filling of any vacancies on the Board, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, (D) any Extraordinary Transaction (other than any public statement regarding how the Investor Parties intend to vote their shares of Common Stock with respect to such Extraordinary Transaction and the reasons therefor), (E) amending or waiving any provision of the Charter or Bylaws, or any actions that may impede or facilitate the acquisition of control of the Company by any person, (F) 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 (G) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(H) effect or seek to effect, offer or propose to effect, cause or participate in, knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, or act in any way that would reasonably be expected to result in or require a public announcement or disclosure related to, any (i) material acquisition of any assets or businesses of the Company or any of its subsidiaries; (ii) tender offer, exchange offer, merger, acquisition, share exchange or other business combination involving any of the foregoing;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 material transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses;
(xI) seekpublicly disclose any vote, delivery of consents or consent revocations, or failure to deliver consents or consent revocations, as applicable, by the Investor Parties against the voting recommendations of the Board in connection with a Stockholder Meeting;
(J) comment publicly about any director or the Company’s management, policies, strategy, operations, financial results or any transactions involving the Company or any of its subsidiaries;
(K) make or in any way which may advance any request or proposal that the Company or the Board amend, modify or waive any provision of this Agreement, other than through non-public communication with the Company that would not reasonably be reasonably likely expected to require, involve or trigger public disclosure obligations for any of such request pursuant to applicable Law, to have the Parties;
(L) take any action challenging the validity or enforceability of any provision of this Section 3.1 amended, modified 3 or waived;this Agreement unless the Company is challenging the validity or enforceability of this Agreement; or
(xiM) otherwise takeenter into any discussions, directly negotiations, agreements or indirectly, understandings with any actions Third Party with the purpose respect to any 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 Transferor knowingly advise, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under assist, encourage or seek to persuade any credit facility in existence on the date hereof if such transferee agrees in writing reasonably satisfactory Third Party 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 the Company to notify the Company’s transfer agent that there is a stop transfer order action with respect to all 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 offoregoing, or the power to vote otherwise take or direct the voting of, cause 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 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 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.foregoing;
Appears in 1 contract
Sources: Cooperation Agreement (Inogen Inc)
Standstill. (a) Each Except, in the case of clauses (i)(A), (i)(B) and (i)(C), as expressly contemplated by Article 9 of this Agreement, during the Shareholders hereby agrees that, from and after period beginning on the date hereof until and ending on the earlier of date on which a Parent’s Parent Aggregate Percentage Interest goes below the Effective Time of the Merger and the termination of the Merger AgreementLower Threshold, such Shareholder Parent shall not, and shall cause its other Parent Entities not 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, 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 participate in, facilitate or encourage any other Person to effect or seek, offer or propose (collectivelywhether publicly or otherwise) to effect or participate in, a “Transfer”(A) any acquisition of any securities (or beneficial ownership thereof or economic interests therein), or enter into rights or options to acquire any contract, option or other agreement with respect to, or consent to, a Transfer of, the record securities (or beneficial ownership thereof or both or voting powereconomic interests therein), of the other Parent, or any or all assets of the Shareholder Owned Shares;
other Parent or any of its Subsidiaries (iiincluding securities of or held by such Subsidiaries) enter into constituting a significant portion of the consolidated assets of such other Parent, (B) any voting agreementtender offer or exchange offer, proxymerger, consent consolidation or power other business combination involving the other Parent or any of attorney with respect toits Subsidiaries, or deposit into any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a voting trustsignificant portion of the consolidated assets of the other Parent, the Shareholder Owned Shares;
(iiiC) enter into any short sale recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Common Stock other 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;
(iv) transfer any of the economic interest in the Shareholder Owned Shares its Subsidiaries or enter into any transaction that has such effect;
(vD) 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 (other Parent or any of its Subsidiaries, including by making publicly known such Shareholder’s position on any matter presented soliciting consents or taking other action with respect to shareholders), other than to recommend that shareholders the calling of a special meeting of the Company vote in favor stockholders of the Merger and the Merger Agreement;
other Parent or any of its 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;
(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 the other Parent; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, board of directors or policies of the other Parent or to obtain representation on the board of directors of the other Parent; (iv) disclose or direct any Person to disclose, any intention, plan or arrangement inconsistent with the foregoing; (v) advise, assist or encourage or direct any Person to advise, assist or encourage any other Persons in connection with any of the foregoing;
; or (xvi) seek, in request a waiver or amendment of 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 Agreementforegoing clauses (i) through (v). Notwithstanding the foregoing, a Parent’s chief executive officer may make a non-public, confidential, oral, non-binding proposal regarding a transaction of the following Transfers are expressly permitted under this Agreement type described in clauses (each i)(A), (B) or (C) of the preceding sentence to the other Parent’s chief executive officer, provided that the Parent providing such Transfer, a "Permitted Transfer"): proposal (1) does not make such proposal for the purpose of causing the receiving Parent to make public disclosure of such proposal and (2) immediately withdraws such proposal and does not further pursue such proposal or any proposal that is substantially similar to such proposal if the other Parent’s board of directors has been apprised of such proposal and such Parent is not interested in exploring any such transaction. 83
(b) A Parent and its other Parent Entities shall be released from the provisions of Section 12.1(a) in the event that (i) the other Parent enters into, or publicly announces an intention to pursue, one or more related transactions or agreements providing for the acquisition by a pledge third party 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 more than 50% of this Agreement, its voting securities or all or substantially all of its assets or (ii) Transfers (A) a tender or exchange offer is commenced by a third party to a family member acquire 50% or more of a Shareholder the outstanding voting securities of the other Parent and (B) such other Parent (1) publicly recommends that its stockholders accept such offer or to a trust for the benefit of a family member(2) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred does not within ten Business Days publicly recommend that its stockholders reject such offer or (y) publicly recommends that its stockholders reject such transferee agrees in writing reasonably satisfactory to offer but subsequently publicly withdraws such recommendation. If the Parent to be bound and that is the subject of a tender or exchange offer publicly recommends that its stockholders reject the offer, such Parent may not (I) subsequently publicly recommend that its stockholders accept such offer or publicly withdraw its recommendation that its stockholders reject such offer unless such offer remains open for at least 20 Business Days following such change in recommendation (either pursuant to the terms and provisions of this Agreement, such offer or by action of such Parent preventing its consummation during such 20-Business Day period) or (iiiII) Transfers to a third party if the transferee agrees in writing reasonably satisfactory prior to the end of such 20-Business Day period, enter into an agreement providing for the acquisition of more than 50% of its outstanding voting securities or all or substantially all of its assets by the Person making such offer unless such agreement provides that the acquisition contemplated by it may not be consummated for at least another 20 Business Days from the date such agreement is executed and such agreement allows the Parent that is the subject of the tender offer or exchange offer to be bound provide information to and subject to participate in discussions or negotiations with the terms other Parent and provisions of this Agreementits representatives regarding, and (iv) Transfers to terminate such agreement without the Company in such amounts as are necessary to satisfy the withholding taxes due in respect payment of settlement of stock options any fee or stock grants. In the event that any Shareholder effects a Permitted Transfer other amount (other than a Permitted Transfer described in clause (iv) break-up or similar fee not exceeding 1% of the immediately preceding sentence)equity value of such Parent) in order to enter into an agreement with the other Parent or any of its Parent Entities providing for, 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 the acquisition by the other Parent or its Parent Entities of more than 50% of the consummation outstanding voting securities or all or substantially all of the assets 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 voidParent. 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.84
Appears in 1 contract
Sources: Limited Liability Company Agreement (McGraw-Hill Companies Inc)
Standstill. (a) Each of the Shareholders hereby agrees that, from From and at all times after the date hereof until the earlier of the Effective Time of the Merger Date, each Driver Party shall not, and the termination of the Merger Agreement, such Shareholder shall cause its respective Representatives to 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 make any announcement or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement proposal with respect to, or consent tooffer, a Transfer ofseek, the record propose, or beneficial ownership indicate an interest in, (A) any form of business combination or both acquisition or voting power, of any other transaction relating to some or all of the Shareholder Owned SharesCommon Stock, or some or all of the material assets of AmeriServ or any of its subsidiaries, (B) any form of restructuring, recapitalization, or similar transaction with respect to AmeriServ or any of its subsidiaries or (C) any form of tender or exchange offer for shares of Voting Securities, whether or not such transaction involves a Change of Control of AmeriServ;
(ii) enter into engage in, or assist in the engagement in, any voting agreementsolicitation of proxies or written consents to vote any Voting Securities, proxyor conduct, consent or power assist in the conducting of, any type of attorney binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or deposit into from the holders of, any Voting Securities, 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 AmeriServ (including, without limitation, by initiating, encouraging or participating in any “withhold” or similar campaign);
(iii) enter into purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including, without limitation, beneficial ownership) of any short sale with respect securities of AmeriServ, any direct or indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock Stock, or substantially identical property any assets or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical propertyliabilities of AmeriServ;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquireadvise, offer to acquireencourage, 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, 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 AgreementAmeriServ;
(viiv) submit take any action in furtherance of or make any proposal or request that such Driver Party knows, or should reasonably expect to know, constitutes or would result in: (A) advising, controlling, changing, or influencing any director or employee of AmeriServ, including, without limitation, any plans or proposals to change the number or terms of AmeriServ directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs, or practices or dividend policy of AmeriServ, (C) any other material change in AmeriServ’s management, business, or corporate structure, (D) seeking to have AmeriServ waive or make amendments or modifications to the Company Bylaws or the Articles of Incorporation, or other actions that may impede or facilitate the acquisition of control of AmeriServ by any shareholder proposal under Person, (E) causing a class of securities of AmeriServ 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 AmeriServ to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act and the rules promulgated thereunder;
(vi) communicate with shareholders of AmeriServ or others pursuant to Rule 14a-8 14a-1(1)(2)(iv) under the Exchange Act;
(vii) act, including, without limitation, by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence AmeriServ’s shareholders, management, or the Board with respect to AmeriServ’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions, or strategy or to obtain representation on the Board or seek the removal of any director in any manner;
(viii) make engage in any public announcement short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including, without limitation, 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 submit derives any significant part of its value from a proposal for, decline in the market price or offer value of (with or without conditions) any extraordinary transaction involving an acquisition of the CompanyAmeriServ’s securities or assetssecurities;
(ix) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, all or substantially all, voting rights decoupled from the underlying Common Stock held by each Driver Party or any of its Representatives;
(x) call or attempt to call, or request the call of, alone or in concert with others, any meeting of shareholders, whether or not such a meeting is permitted by the Bylaws, including, without limitation, a “town hall meeting”;
(xi) attempt to, or knowingly encourage or advise any Person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to AmeriServ or seek, encourage or take any other action with respect to the election or removal of any directors;
(xii) form, join join, maintain 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 any Voting Security;
(xiii) demand a copy of AmeriServ’s list of shareholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of the Commonwealth of Pennsylvania providing for shareholder access to books and records (including, without limitation, lists of shareholders) of AmeriServ;
(xiv) make any request or submit any proposal to amend or waive the terms of this Section 7 other than through non-public communications with AmeriServ that would not trigger public disclosure obligations for any Party;
(xv) engage any private investigations firm or other Person to investigate any of AmeriServ’s directors or officers;
(xvi) disclose in connection a manner that could reasonably be expected to become public any intent, purpose, plan, or proposal with respect to any AmeriServ director or AmeriServ’s management, policies, strategy, operations, financial results or affairs, any of its securities or assets, or this Agreement that is inconsistent with the provisions of this Agreement; or
(xvii) enter into any discussions, negotiations, agreements, or understandings with any Person with respect to any action the Driver Parties are prohibited from taking pursuant to this Section 7, or advise, assist, knowingly encourage, or seek to persuade any Person to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(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 From and at all times after the Effective Date, each Driver Party shall refrain from taking any actions which could have the effect of encouraging, assisting, or influencing other shareholders of AmeriServ or any other Persons to engage 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 actions which, if taken by such Party, would violate this Agreement places limits on the voting of its Shareholder Owned SharesAgreement.
(c) Prior From and at all times after the Effective Date, each of the Driver Parties agrees not to, and to the termination of this Agreement in accordance with its termscause their respective Representatives to not, in the event that a Shareholder acquires record comment publicly about any AmeriServ director or beneficial ownership ofAmeriServ’s management, policies, strategy, operations, financial results, or the power to vote affairs or direct the voting ofany transactions involving AmeriServ or any of its subsidiaries, 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 except as expressly permitted 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: Cooperation and Settlement Agreement (Ameriserv Financial Inc /Pa/)
Standstill. Without the prior written consent of the Company (approved by a majority of the Class A and Class C Directors voting together) or except as provided in this Agreement or in the Organizational Documents, during the Standstill Period, no Investor may, and no Investor shall permit any of the Permitted Transferees of such Investor to, and JLL shall not permit Jose▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇evy ▇▇▇. or any of its Subsidiaries to:
(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 publicly announce an intention to acquire, or agree to acquire, directly or indirectlyindirectly (including through one or more intermediaries), by purchase or otherwise, beneficial ownership of any assets Voting Stock of the Company or any subsidiary or division thereofresulting in an increase in such Investor's percentage beneficial ownership, at such time, of the Company's Voting Stock on a fully diluted basis;
(vib) make any public announcement or proposal whatsoever with respect to a merger or other business combination, sale or transfer of assets, recapitalization, dividend, share repurchase, liquidation or other extraordinary corporate transaction with the Company that would result in a Change of Control of the Company;
(c) solicit or encourage any third party to make any statement or proposal, or take any action to require the Company to make a public announcement regarding the possibility of any transaction referred to in Section 4.1(b), or advise, assist or encourage any other Persons in connection with the foregoing;
(d) make, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of “"proxies” " (as such terms are used defined in Rule 14a-1 under the rules of the Securities and Exchange CommissionAct) to votevote any Voting Stock, or seek to advise advise, encourage or influence any Person person or entity with respect to the voting ofof any Voting 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 or initiate or propose any shareholder proposal under Rule 14a-8 under the Exchange Act;or induce or attempt to induce any other Person to initiate any shareholder proposal; or
(viiie) make or advance any public announcement with respect torequest or proposal to amend, modify 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 waive any provision of this Section 3.1 amended4.1 or propose any transaction referred to in Section 4.1(b), modified except in a manner that such Investor in good faith (after consultation with counsel) believes will not require public disclosure thereof (including through any press release or waived;
(xi) otherwise take, directly other public announcement or indirectly, any actions filing with the purpose SEC, by such Investor or the Company under applicable law or the rules of avoiding the Nasdaq National Market or circumventing any provision of stock exchange). Notwithstanding anything 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 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 4.1 to the Parent to be bound and subject to the terms and provisions of this Agreementcontrary, (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 Section 4.1 shall automatically become subject not apply to the terms following Permitted Transferees of this Agreement.
an Investor unless and until such Permitted Transferees acquire beneficial ownership of Covered Securities: (di) Prior with respect to JLL and its Permitted Transferees, the termination Persons referred to in clause (iii) 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 Section 12 of the Merger Agreement by the Company, Series B Certificate of Designations or the approval clause (a)(iii) of Section 5.3.11 of the Merger Agreement by Restated Certificate of Incorporation; and (ii) with respect to Rite Aid and its Permitted Transferees, the Company Board, breaches any fiduciary duty Persons referred to in clause (iii) of Section 12 of the Company Board Series A-2 Certificate of Designations or any member thereof or which otherwise challenges clause (b)(iii) of Section 5.3.11 of the Merger AgreementRestated Certificate of Incorporation.
Appears in 1 contract
Standstill. Each Investor Party agrees that, until the date that is the three (3) year anniversary of the Closing Date, it shall not, and it shall cause each of its Affiliates and Associates not to directly or indirectly, in any manner, alone or in concert with others, take any of the following actions without the prior consent of the Company (acting through a resolution of a majority of the Company’s directors not including, in respect of any consent to actions taken or proposed to be taken by any Investor Party or its Affiliates, any Investor Director):
(a) Each acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, whether by private or open market purchase, a block trade, a tender or exchange offer, Beneficial Ownership of, or any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any debt or equity securities or direct or indirect rights to acquire any debt or equity securities of the Shareholders hereby agrees Company, any securities convertible into or exchangeable for any such debt or equity securities, any options, puts, calls, swaps or other derivative or convertible instruments, hedging contracts or other derivative securities or contracts or instruments in any way related to the price of the Common Shares (solely to the extent that, from after giving effect to such acquisition, such Investor Party, its Affiliates and after Associates would Beneficially Own, in the date hereof until the earlier aggregate, greater than 1% of the Effective Time then outstanding Common Shares (excluding any shares of Series A Preferred Shares or Common Shares issued or issuable in connection with the conversion of the Merger and the termination Series A Preferred Shares)) or 5% of the Merger Agreement, such Shareholder shall notany tranche of any debt securities;
(b) (i) make or in any way encourage or participate, 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” or consents (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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), to vote, or knowingly seek to advise advise, encourage or influence any Person with respect to the voting of, any voting securities of the Company or any of its Subsidiaries or any securities convertible or exchangeable into or exercisable for any such securities, (including ii) request, call or seek to call (or, for the avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company’s shareholders or action by making publicly known such Shareholder’s position on any matter presented to shareholderswritten consent (or the setting of a record date therefor), other than to recommend that shareholders (iii) initiate or be the proponent 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 for action by the Company’s shareholders, (iv) seek, alone or in concert with others, election to or to place a representative on the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, (v) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any director from the Board, or (vi) become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company;
(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) ), either alone or in concert with others, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any Subsidiary of the Company, or any other extraordinary transaction involving 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, business or policies, of the Company or any of its Subsidiaries, including, without limitation, (i) controlling or changing the Board or management of the Company’s securities , including any plans or assetsproposals to declassify the Board or to change the number or term of directors or to fill any vacancies on the Board, (ii) any material change in the capitalization, capital allocation policy or dividend policy of the Company, or (iii) seeking to have the Company waive or make amendments or modifications to the Company Charter Documents, or other actions that may impede or facilitate the acquisition of control of the Company by any person;
(ixe) formmake any proposal or statement of inquiry or disclose any intention, join 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 5.04;
(h) enter into any agreements, arrangements or understandings with any Third Party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, any Investor Party) with respect to any of the foregoing, 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 amended5.04; provided that this clause shall not prohibit any Investor Party from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.04, modified which the Company may accept or waivedreject 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;
(xij) otherwise takemake any public disclosure, directly announcement or indirectlystatement with an intent to specifically disparage current or former Board members (in their capacity as such) or the Company’s management (in their capacity as such) or strategy, operations, financial results or any actions transactions involving the Company or any of its Subsidiaries, except for such statements made with the purpose Company’s prior written consent, or that are supportive of avoiding the Company’s management and Board or circumventing that are otherwise consistent with the provisions of this Agreement; provided, however, that the foregoing provisions shall not be violated by (A) any general statement about market, industry or economic circumstances, conditions or trends, (B) any statement required to be made by applicable Law, (C) any statement protected by the whistleblower-protection provisions of any applicable Law, (D) any statement that is made in response to legal process or in the context of any Action by or before any Governmental Authority or arbitrator (including any such Action to enforce the terms of the this Agreement or other such Action in connection with the transactions contemplated hereby), or (E) any statement that is reasonably necessary in connection with the enforcement of rights under this Agreement, or any other written agreement involving the Company and such Investor Party;
(k) contest the validity of this Section 5.04 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 3.1 5.04; provided, however, that nothing in this Section 5.04 will (1) limit any Investor Party’s ability to vote, Transfer (subject to this Agreement, including Section 5.05), convert shares of Series A Preferred Shares into Common Shares (subject to the Certificate of Designations), privately make and submit to the Board any proposal that is intended by such Investor Party to be made and submitted on a non-publicly disclosed or which could announced basis, so long as, in each case, such submission is not intended to, and would not reasonably be expected to, require public disclosure by any Person), participate in rights offerings made by the Company to have the effect all holders of preventingits Common Shares, impeding, interfering receive any dividends or similar distributions with or adversely affecting the consummation respect to any securities of the transactions contemplated Company held by the Merger Agreementsuch Investor Party, including the Mergertender Common Shares or Series A Preferred Shares into any tender or exchange offer (subject to Section 5.05), 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 effect an adjustment to the Parent to be bound and subject Conversion Rate pursuant to the terms and provisions Certificate of Designations or otherwise exercise rights under its Common Shares or Series A Preferred Shares that are not the subject 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 AgreementSection 5.04, and (iv2) Transfers to limit 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) ability 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 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 AgreementBoard.
(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: Investment Agreement (James River Group Holdings, Ltd.)
Standstill. The Purchaser agrees that until the later of the (x) third anniversary of the date of this Agreement, and (y) date on which the Purchaser no longer has record and beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Conversion Shares that constitute at least five percent (5%) of the outstanding Common Stock of the Company, 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) Each of the Shareholders hereby agrees thateffect or seek, from and after the date hereof until the earlier of the Effective Time of the Merger and the termination of the Merger Agreementoffer or propose (whether publicly or otherwise) to effect, such Shareholder shall notor announce any intention to effect or cause or participate in or in any way assist, directly facilitate or indirectlyencourage any other person to effect or seek, unless offer or propose (whether publicly or otherwise) to effect or participate in, (i) specifically requested by Parent any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or 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 to, business combination involving the Company or consent to, a Transfer of, the record its Subsidiaries 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) 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 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 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 or influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company; (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 (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 4.4 shall (x) seekrestrict or prohibit the Series A Director or Purchaser Nominee, as applicable, from taking any action, or refraining from taking any action, which he or she determines, in any way which may be reasonably likely his or her reasonable discretion, is necessary to require, involve fulfill his 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 her fiduciary duties as a member 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 Board 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 Directors or (y) such transferee agrees in writing reasonably satisfactory to restrict 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) Purchaser’s acquisition 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 AgreementAgreement and the Certificate of Designations.
(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 Mangrove agrees that, from and after the date hereof until of this Agreement to the earlier expiration of the Effective Time of the Merger and the termination of the Merger AgreementStandstill Period, such Shareholder Mangrove shall not, and shall cause its Affiliates and Associates not to, directly or indirectly, unless (i) specifically requested by Parent in any manner, acting alone or (ii) expressly contemplated by in concert with others, take any of the terms following actions or advise, recommend, request, encourage, solicit, influence or induce any other person to take any of this Agreement the following actions, or announce any intention to take of the Merger Agreementfollowing actions:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of submit any stockholder proposal (whether pursuant to Rule 14a-8 promulgated by merger, operation of Law the Securities and Exchange Commission (the “SEC”) under the Exchange Act or otherwise) (collectively, a “Transfer”)or any notice of nomination or other business for consideration, or enter into nominate any contract, option or other agreement with respect to, or consent to, a Transfer of, candidate for election to the record or beneficial ownership or both or voting power, of any or all of the Shareholder Owned SharesBoard;
(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 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 “proxiesparticipant in a solicitation” (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 term is defined in Section 13(d)(3) Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in connection opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce or seek to advise, encourage or influence any other person with respect to the voting of any voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any voting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board, or publicly disclose how it intends to vote or act on any such matter; provided, however, that Mangrove may publicly disclose how it intends to vote (i) on any Strategic Transaction (as defined below) which has already been publicly announced by or on behalf of the Company or (ii) in any proxy solicitation or referendum if and to the extent required by applicable subpoena, legal process, other legal requirement (except for such requirement that arises as a result of the actions of Mangrove otherwise in violation of this Section 3);
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(iv) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting stock of the Company or deposit any shares of voting stock of the Company in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement in order to effect or take any of the foregoingactions expressly prohibited by this Section 3 or otherwise take any action challenging the validity or enforceability of any provisions of this Section 3;
(v) (A) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board (other than pursuant to Section 1 hereof) or (B) seek, alone or in concert with others, the removal of any member of the Board (other than the removal of any Settlement Director (or Replacement Director, if applicable) in accordance with the terms of this Agreement) or a change in the size or composition of the Board or the committees thereof;
(vi) alone or in concert with others, make any proposal or request that constitutes: (i) 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 (except as provided in Section 1 above) to fill any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company or (iii) any other material change in the Company’s executive management, business, corporate strategy or corporate structure, except in each case for (x) inadvertent disclosure in a non-public context, (y) in connection with private discussions with limited partners or shareholders of Mangrove or their Affiliates, including in confidential letters to such limited partners or shareholders, or (z) statements that are consistent with the Press Release;
(vii) (A) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person or (B) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of Common Stock or rights or options to acquire Common Stock or engage in any swap or hedging transactions (other than cash-only settled swaps) or other derivative agreements of any nature with respect to the Common Stock, if such acquisition or transaction would result in Mangrove having beneficial ownership or economic exposure to more than 9.9% of the then issued and outstanding Common Stock (excluding, for the avoidance of doubt, any economic exposure resulting from cash-only settled swaps);
(viii) other than in sale transactions in which the identity of the purchaser is not known to Mangrove, purposely sell or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, in excess of 1% of the outstanding shares of Common Stock or any derivatives relating to Common Stock to any third party that either (i) has filed a Schedule 13D with respect to the Company or (ii) has run (or publicly announced an intention to run) a proxy contest or consent solicitation with respect to the Company in the past three years (but, in the case of this clause (ii), only if Mangrove knows that the third party has, or will as a result of the transaction have, beneficial ownership of more than 5% of the Common Stock);
(ix) (A) enter into or maintain any economic, compensatory, pecuniary or other arrangements with any Settlement Director (or Replacement Director, if applicable) thereto that depend, directly or indirectly, on the performance of the Company or its stock price, or (B) enter into or maintain any economic, compensatory, pecuniary or other arrangements with any other director or nominees for director of the Company, other than, in the case ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ Share is the Mangrove Nominee, a Compensation Agreement and an Indemnification Agreement each by and between the Mangrove Nominee and The Mangrove Partners Master Fund, Ltd. and dated March 10, 2016;
(x) seekother than at the direction of the Board or any committee thereof, in effect or seek to effect, propose, or make any way which may be reasonably likely statement with respect to, or solicit, negotiate with, or provide any information to require, involve or trigger public disclosure of such request pursuant any person with respect to applicable Law, to have any provision of this Section 3.1 amended, modified or waiveda Strategic Transaction;
(xi) otherwise takedisclose publicly, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which privately in a manner that could reasonably be expected to have become public, any intention, plan or arrangement inconsistent with the effect foregoing or request or advance any proposal to amend, modify or waive the terms of preventingthis Agreement;
(xii) institute, impedingsolicit, interfering with assist or adversely affecting join any litigation, arbitration or other proceeding against or involving the consummation Company or any of its current or former directors or officers (including derivative actions), make any requests for a list of the transactions contemplated by Company’s stockholders or any “books and records” demands against the Merger AgreementCompany or make application or demand to a court or other person for an inspection, including investigation or examination of the Merger, Company or such Shareholder’s ability its subsidiaries or Affiliates (whether pursuant to perform its obligations under Section 220 of the Delaware General Corporation Law or otherwise); provided that nothing shall prevent Mangrove from bringing litigation to enforce the provisions of this Agreement; or
(xiii) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or advise, assist, encourage, seek to persuade or solicit any person to take any action with respect to any of the foregoing. Notwithstanding the foregoing, the following Transfers are expressly permitted under nothing in this Agreement shall prohibit or restrict Mangrove from: (each A) communicating privately with the Board or any of the Company’s officers regarding any matter in a manner that does not otherwise violate this Section 3, so long as such Transfercommunications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) communicating privately with stockholders of the Company and others in a "Permitted Transfer"): manner that does not otherwise violate this Section 3, (iC) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over Mangrove or any of its respective Affiliates or Associates, provided that a pledge breach by Mangrove of Shareholder Owned Shares required under any credit facility this Agreement is not the cause of the applicable requirement, (D) communicating with its investors in existence on the date hereof if quarterly or annual letters provided such transferee agrees in writing reasonably satisfactory to the Parent to be bound and communications are subject to the terms and provisions of this Agreementstandard confidentiality obligations, (iiE) 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 taking any of the Shareholder Owned Shares so Transferred or actions described in clauses (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementii), (iii), (iv), (v), (vi), (vii) Transfers (provided that Mangrove will be permitted to a third party if the transferee agrees in writing reasonably satisfactory acquire or agree, offer, seek or propose to the Parent acquire, or cause to be bound acquired, ownership (including beneficial ownership) of all of the assets or business of the Company or 100% of the then issued and subject to the terms and provisions outstanding Common Stock), (x), (xi), (xii) or (xiii) of this AgreementSection 3(a) during a Standstill Exception Period, and (iv) Transfers to the Company in provided, that such amounts as actions 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 taken in connection with a Shareholder Owned Shares Proposal Strategic Transaction or (subject to compliance with Section 3.3(b)F) taking any of the actions described in clauses (ii), such Shareholder (iii), (iv), (v), (vi), (ix) or (xii) of this Section 3(a) in connection with the Special Meeting. Furthermore, nothing in this Agreement shall promptly (and be deemed to restrict in any event within 24 hours after consummation thereofway the ability of any Settlement Director (or any Replacement Director as the case may be) 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 from fulfilling his statutory duties as 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)director.
(b) Any Transfer As used 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.Agreement:
(ci) Prior to the termination of this Agreement in accordance with its terms, in terms “beneficial owner” and “beneficial ownership” shall have 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 same meanings as 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 Rule 13d-3 promulgated by the Company, or SEC 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 Agreement.Exchange Act;
Appears in 1 contract
Sources: Shareholder Agreement (RPX Corp)
Standstill. (a) Each of the Shareholders hereby agrees that, from and after Until 11:59 p.m. (Montréal time) on the date hereof until that is three years from the earlier of the Effective Time of the Merger date hereof, Mitsui and the termination of the Merger Agreement, such Shareholder shall its Affiliates will not, directly alone or indirectlyin concert with others, unless (i) specifically requested by Parent without the prior written consent of NMG or (ii) as otherwise expressly contemplated by the terms of permitted under this Agreement or the Merger Agreement:
(i) sellpurchase, transferacquire, tenderor offer to purchase (except under the terms of the Subscription Agreement, pledgethe Registration Rights Agreement, encumberthe Warrant Certificate, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose any other subscription agreement between Mitsui and NMG entered into following the date hereof) any equity securities of NMG (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”including Common Shares), except pursuant to:
(1) a stock dividend or enter into dividend-in-kind paid by NMG or a subsidiary to all holders of Common Shares, including pursuant to any contractdividend reinvestment plan of NMG or a subsidiary;
(2) a security-based compensation arrangement;
(3) open market purchases of Common Shares following the FID Equity Financing, option or other agreement with respect toprovided that, or consent to, a Transfer ofat any given time, the record or beneficial ownership or both or voting power, aggregate number of any or Common Shares purchased in all such transactions shall not be more than one percent (1%) of the Shareholder Owned Sharesnumber of issued and outstanding Common Shares at such time; or
(4) as otherwise permitted pursuant to Section 5(c);
(ii) enter into effect, seek, offer or propose, or in any voting agreementway advise or encourage any other Person to effect, proxyseek, consent offer or power propose (in each case, whether publicly or otherwise):
(1) any take-over bid, merger, amalgamation, plan of attorney arrangement, reorganization or other business combination involving NMG or any of its assets; or
(2) any recapitalization, restructuring, liquidation, dissolution, disposition of a material portion of the assets or other extraordinary transaction with respect to, to NMG or deposit into a voting trust, the Shareholder Owned Sharesany of its assets;
(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 (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 AgreementNMG;
(viiiv) submit otherwise act in a manner to seek to control the management, Board or the policies of NMG beyond the Board and committee representation provided in this Agreement or as provided to the Company any shareholder proposal under Rule 14a-8 under the Exchange ActJapan SPC or its Affiliates;
(viiiv) make enter into 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 act in concert with, any other Persons (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 Actexcluding Japan SPC and its Affiliates) in connection with any of the foregoing;
(xvi) 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 NMG 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
(xivii) otherwise take, directly attempt to induce any party not to make or indirectly, conclude any actions proposal with the purpose of avoiding respect to NMG by threatening or circumventing indicating that Mitsui 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 Mitsui 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 NMG or as otherwise expressly permitted under this Agreement, purchase, acquire, or offer to authorize purchase any equity securities of NMG that would result in Mitsui, Japan SPC, and request their respective Affiliates owning, or exercising control over, more than 20% of 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 then outstanding Common Shares.
(c) Prior Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 6 shall no longer apply from the earliest of:
(i) the date NMG enters into a definitive agreement with a third party that provides for (1) the acquisition by any means, including, without limitation, acquisition of equity, a statutory plan of arrangement, merger or business combination, by any Person, directly or indirectly, of more than 50% of the total voting power of the outstanding voting stock of NMG, (2) the date NMG enters into a definitive agreement with a third party that provides for an acquisition of all or substantially all of the assets of NMG, or (3) the date a third party, alone or in concert with others, enters into a definitive agreement to acquire, or acquires, directly or indirectly, more than 50% of the termination voting securities of this Agreement in accordance with its termsNMG; provided, however, that, in the event that a Shareholder acquires record the proposed transaction in (1), (2) or beneficial ownership of(3) 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 Section 6(a) shall be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.reinstated;
(dii) Prior to the termination date NMG makes a public announcement regarding the entering into of this Agreement an agreement described in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action paragraph (i) above; and
(iii) the date the Board gives an opinion supportive of NMG entering into an agreement described 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 Agreementparagraph (i) above.
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. During the Option Period, without the consent of Buyers:
(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 no Seller or Seller Affiliate 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 commence any tender offer for OTEF BACs (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”not filed with the SEC), or enter into purchase any contractBACs from any Person, option or other agreement including open market purchases, if such purchase would require the filing of a Schedule 13D 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 SharesSEC;
(iib) enter into no Seller or Seller Affiliate will 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 attempt to acquire, acquire or agree make a proposal to acquire, directly or indirectly, any securities or interests, whether debt or equity, or properties, assets or obligations of Oxford Entities (other than BACs of OTEF to the extent permitted by purchase subsection (a) above) or otherwise, commence any assets of tender offer (whether or not filed with the Company SEC) for securities or interests in any subsidiary or division thereofOxford Entity other than OTEF;
(vic) no Seller or Seller Affiliate shall initiate any proposal for, or enter into, directly or indirectly, any acquisition, financing, refinancing, merger, combination or other business transaction involving the Oxford Entities including, but not limited to, any Property Owning Entity or OTEF;
(d) no Seller or Seller Affiliate shall 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 or consents to vote, or seek to advise or influence any Person person with respect to the voting of, of any voting securities of the Company any Oxford Entity (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders vote as an owner of the Company vote in favor of the Merger and the Merger Agreement;such securities); and
(viie) submit to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
(viii) make any public announcement with respect tono Seller or Sellers' Affiliate shall otherwise act, 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 alone or in concert with others, to seek control or influence the management or policies of any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) Oxford Entity, but not limited to any Property Owning Entity or OTEF; and /or advise, assist 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 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 1 contract
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 this Agreement, 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 foregoing actions.
(b) The Investor will not, alone or in concert with others, without the Merger Agreement, including the Merger, prior written consent of Corporation or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are as otherwise expressly permitted under this Agreement (each such Transferor Section 2.2 of the Spinco Second Tranche Subscription Agreement, a "Permitted Transfer"): Purchase any Equity Securities (i) a pledge until the completion or termination 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 Second Tranche Investment, and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (following completion or to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control termination of the Shareholder Owned Shares so Transferred Second Tranche Investment, that would result in the Investor owning, or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreementexercising control over, (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 more than a Permitted Transfer described in clause (iv) 20% 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 then outstanding Common Shares.
(c) Prior Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 5.4 shall not apply to any confidential offer or proposal made by the Investor or its 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 5.4 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 1 contract
Standstill. (a) Each Subject to the last paragraph of this Section 3, BlueLine covenants and agrees that during the Agreed Period, unless specifically requested in writing in advance by a majority of the Shareholders hereby agrees thatBoard (excluding any BlueLine Nominee who is not an Unaffiliated BlueLine Nominee), 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 BlueLine shall not, and shall cause its directors, officers, employees, agents, representatives and affiliates not to, directly or indirectly, unless assist (i) specifically requested including by Parent providing information or (ii) expressly contemplated by the terms of this Agreement financing), encourage or the Merger Agreementparticipate with others 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 announce an intention to acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase purchase, gift, tender or exchange offer, or otherwise, beneficial or record ownership of any shares of Common Stock or any other voting securities of Criticare or any of its subsidiaries, including any rights, warrants, options or other securities convertible into or exchangeable for such shares or other voting securities, or any assets of the Company Criticare or any division or subsidiary thereof, from Criticare stockholders, Criticare or division thereofthird parties; provided, however, that nothing in this Section 3(a) shall be deemed to limit, restrict or prevent BlueLine from acquiring additional shares of Common Stock in an aggregate amount that, when added to all shares then beneficially owned (within the meaning of Rule 13d-3 of the SEC) by BlueLine, do not exceed 14.9% of the then-outstanding shares of Common Stock (the "Maximum Ownership Threshold");
(vib) makeform, join or in any way engage in discussions relating to the formation of, or participate in, a "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to shares of Common Stock or any other voting securities of Criticare, or any of the matters covered by this Section, or otherwise act in concert with any Person (as hereinafter defined) in respect of any such shares or voting securities or matters;
(c) arrange, or in any way participate in, any financing for the purchase by any individual, corporation, partnership, limited liability company, limited partnership, limited liability partnership, syndicate, person, trust, association, organization or other entity, including any successor, by merger or otherwise, of any of the foregoing (collectively, "Persons" and each, a "Person"), of any shares of Common Stock or any other voting securities or assets or businesses of Criticare or any of its affiliates;
(d) join in or in any way participate in any pooling agreement, stockholders agreement, voting trust or other arrangement or agreement with respect to the voting of any shares of Common Stock or other voting securities of Criticare;
(e) make, seek to propose or participate in making an offer or proposal to Criticare, Criticare's stockholders or any third party (by public announcement, submission to Criticare, such stockholders or third party or otherwise) in respect of any extraordinary corporate transaction involving Criticare, its Common Stock or other voting securities or the capital stock or voting securities of any of its affiliates, including by merger, consolidation, tender or exchange offer, reorganization, recapitalization, extraordinary dividend, dissolution, restructuring, liquidation, sale or transfer of assets (other than in the ordinary course of Criticare's business) or otherwise, or the acquisition or purchase by BlueLine or any other Person of all or any portion of the assets or shares of Common Stock or other voting securities of Criticare or the capital stock or voting securities of any of its affiliates, including by merger, consolidation, tender or exchange offer, reorganization, recapitalization, extraordinary dividend, dissolution, restructuring, liquidation, sale or transfer of assets (other than in the ordinary course of Criticare's business) or otherwise;
(i) solicit proxies or consents for the voting of any Common Stock or other voting securities of Criticare or any of its subsidiaries or otherwise become a "participant," directly or indirectly, in any "solicitation" of "proxies" or consents to vote, or become a "participant" in any "election contest" involving Criticare, or its Common Stock or other voting securities, or such subsidiary (all terms used herein and defined in Regulation 14A under the Exchange Act having the meanings assigned to them therein), including by any means allowed by or pursuant to the "e-proxy" amendments to the proxy rules adopted or proposed by the SEC on December 13, 2006, (ii) call or seek to call, directly or indirectly, any “solicitation” special meeting of “proxies” stockholders of Criticare for any reason whatsoever, (as such terms are used in the rules of the Securities and Exchange Commissioniii) to voteseek, request, or take any action to obtain or retain, directly or indirectly, any list of holders of Common Stock or any voting or other securities of Criticare or to obtain or retain, directly or indirectly, the books and records of Criticare or its affiliates, (iv) seek to advise or influence any Person with respect to the voting of, of Common Stock or any other voting securities of Criticare or any of its subsidiaries, (v) initiate, propose or otherwise "solicit" Criticare stockholders for the Company approval of shareholder proposals, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, (including vi) otherwise communicate with Criticare's stockholders or holders of voting securities of Criticare or any of its subsidiaries pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, (vii) participate in, or take any action pursuant to, any "shareholder access" proposal which may be adopted by making publicly known such Shareholder’s position the SEC whether in accordance with previously proposed Rule 14a-11 or otherwise, (vii) otherwise engage in any course of conduct with the purpose of causing other stockholders of Criticare or the holders of voting securities of Criticare to vote contrary to the recommendation of the Board on any matter presented to shareholders)Criticare's stockholders or holders of voting securities of Criticare for their vote or challenging the policies of Criticare, 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;
or (viii) make any public announcement with respect tootherwise act, 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 alone or in any way participate in a “group” (as defined in Section 13(d)(3) under concert with others, to seek to control or influence the Exchange Act) in connection with management, the Board, policies or affairs of Criticare or any of the foregoing;
its subsidiaries (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 it being understood that 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, clause (iii) Transfers to a third party if shall not limit the transferee agrees in writing reasonably satisfactory to exercise of the Parent to be bound powers, protections and subject to obligations of the terms and provisions of this Agreement, and (ivBlueLine Nominee(s) 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 (ivdirector(s) of the immediately preceding sentenceCriticare under Delaware law), 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
Sources: Confidentiality Agreement (Criticare Systems Inc /De/)
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 member of the Shareholders hereby Arbor Group severally, and not jointly, agrees that, for a period of 12 months from and after the date hereof until of this Agreement, without the earlier prior written consent of the Effective Time Board specifically expressed in a written resolution adopted by a majority vote of the Merger entire Board, he or it will not, and will cause each of his or its officers, agents and other Persons, including any Affiliates or Associates identified in the termination Arbor Schedule 13D as members of the Merger Agreement"Arbor Group" as therein defined, such Shareholder shall notacting on his or its behalf not to:
(i) engage, or in any way participate, 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 term is defined in Rule 14a-1(l) promulgated by the rules of SEC under the Securities and Exchange CommissionAct of 1934, as amended (the “Exchange Act”)) of proxies or consents (whether or not relating to votethe election or removal of directors); advise, or seek to advise encourage or influence any Person (as herein defined) with respect to the voting ofof any Voting Securities with respect to the 2008 Annual Meeting or any other meeting of the Company’s stockholders that occurs prior to the termination of this Agreement in a manner that is inconsistent with the terms of this Agreement; nominate or propose any person for election to the Board; or initiate, any voting securities propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company (including by making publicly known such Shareholder’s position on any matter presented 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 or exempt solicitations pursuant to Rule 14a-2(b)(1) or Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or encourage any other Person to initiate any such stockholder proposal; or otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act;
(viiiii) other than in connection with Section 2 hereof, seek or propose, or make any public announcement statement with respect to, any merger, consolidation, business combination, tender or submit exchange offer, sale or purchase of assets, sale or purchase of securities (except that the Arbor Group may seek or propose a proposal for, sale or offer of (with or without conditions) any extraordinary transaction involving an acquisition purchase of the Company’s securities shares of the Company beneficially owned by the Arbor Group as of the date hereof), dissolution, liquidation, restructuring, recapitalization or assetssimilar transactions of or involving the Company or any of its Affiliates;
(ixiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Arbor Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(iv) act, alone or in concert with others, to control or seek to control, or influence or seek to influence, the management, Board or policies of the Company;
(v) other than as defined previously disclosed in Section 13(d)(3the Arbor Schedule 13D, 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;
(vi) under the Exchange Actknowingly 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 or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(xvii) seek, in discuss or communicate 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 confidential information 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 respect to the Company in such amounts as are necessary and its business, including but not limited to satisfy information related to the withholding taxes due in respect evaluation of settlement of stock options any strategic alternatives under consideration by the Board; and
(viii) take or stock grants. In the event that cause or induce others to 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 The Arbor Group hereby waives any right (whether by statute or agreement) to inspect records and lists of Company stockholders (including any list of non-objecting beneficial owners) in violation of Section 3.1(a) shall be void. Each Shareholder agrees connection with the 2008 Annual Meeting, including the rights Arbor has pursuant to authorize that certain agreement dated March 12, 2008, between Arbor and request the Company, that requires the Company to notify the Company’s transfer agent that there is a stop transfer order with respect produce or provide access to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Sharescertain stockholder records.
(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 Except as otherwise specifically provided in Section 1, each member of the Shareholders hereby agrees thatStockholder Group will not, from and after will cause each of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as in effect on the date hereof) not to, during the period commencing on the date hereof until and ending on January 15, 2004 (the earlier of the Effective Time of the Merger and the termination of the Merger Agreement, such Shareholder shall not"STANDSTILL TERMINATION DATE"), directly or indirectly, unless without the written consent of the Company (i) specifically requested by Parent which may be withheld or (ii) expressly contemplated delayed by the terms of this Agreement or the Merger Agreement:Company at its sole discretion):
(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”), 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 announce an intention 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, beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of: (A) any assets Common Stock or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise) any Common Stock; or (B) any other Voting Securities, or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise) any other Voting Securities; PROVIDED, HOWEVER, that clauses (A) and (B) shall not include Common Stock or other Voting Securities received as a result of a stock dividend, stock distribution or stock split or through the exercise of any rights under any Company rights offering or shareholder rights plan; PROVIDED, FURTHER, HOWEVER, that clause (i) shall not prohibit any open-market purchase of Common Stock only if, after giving effect to any such purchase, the Stockholder Group does not beneficially own in excess of 15% of the Company or any subsidiary or division thereofCommon Stock;
(viii) make, solicit proxies (or written consents) or assist or participate in any way participate inother way, directly or indirectly, in any “solicitation of proxies (or written consents), or otherwise become a "participant" in a "solicitation” of “proxies” " (as such terms are used defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the rules Exchange Act) in opposition to the recommendation or proposal of the Securities and Exchange CommissionBoard, or recommend or request or induce or attempt to induce any other individual or entity (each, a "PERSON") to votetake any such actions, or seek to advise advise, encourage or influence any Person other person with respect to the voting of (or the execution of a written consent in respect of) the Common Stock or other Voting Securities, or execute any voting securities written consent in lieu of a meeting of the Company (including by making publicly known such Shareholder’s position on holders of the Common Stock or other Voting Securities or grant a proxy with respect to the voting of the Common Stock or other Voting Securities to any matter presented to shareholders), person other than to recommend that shareholders of the Company vote in favor of Board or persons appointed as proxies by the Merger and the Merger AgreementBoard;
(viiiii) initiate, propose or submit one or more stockholder proposals or induce or attempt to the Company induce any shareholder proposal under Rule 14a-8 under the Exchange Actother person to initiate any stockholder proposal;
(viiiiv) make any public announcement with respect tocall or request, seek to call or submit request the call of, a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition special meeting of the Company’s securities 's stockholders, or assetsmake a request for a list of the Company's stockholders;
(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 Exchange Act) for the purpose of acquiring holding, voting or disposing of any securities of the Company other than the Stockholder Group;
(vi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) seek, alone or in connection concert with others, to place a representative or other affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) deposit any Common Stock or other Voting Securities in a voting trust or enter into any other arrangement or agreement with respect to the voting thereof; PROVIDED, HOWEVER, that the foregoing shall not prohibit Broken Arrow's investment committee from taking any action that is not otherwise inconsistent with this Agreement;
(ix) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(x) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(xi) take any action, alone or in concert with any other person, advise, finance, assist or participate in or encourage any person to take any action which is prohibited to be taken by any Investor or any of its affiliates or associates pursuant to this Agreement, or make any investment in or enter into any arrangement with, any other person that engages, or offers or proposes to engage in any of the foregoing;
(xxii) seekdisclose publicly, or privately 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 a manner that could reasonably be expected to have the effect of preventingbecome public, impedingany intention, interfering plan or arrangement 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, ; or
(xiii) take any action challenging the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge validity or enforceability 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 AgreementSection 2.2; PROVIDED, (ii) Transfers to a family member of a Shareholder (or to a trust for HOWEVER, that the benefit of a family member) or to a charitable organization if foregoing shall not prohibit: (x) the Shareholder retains voting control of Offeror (as defined below) from presenting to the Shareholder Owned Shares so Transferred Board Qualified Proposals (as defined below); or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound Offeror from conducting non-hostile discussions with officers of 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 advisors to the Company that are incidental to the development of any Qualified Proposal. The Company shall cause any such Qualified Proposals to be presented to the Board (or a committee thereof) and shall permit any such discussions to occur, but nothing in such amounts as are necessary this Agreement shall impose upon the Board or the Company any obligation to satisfy the withholding taxes due in respect of settlement of stock options act (or stock grants. In the event that any Shareholder effects a Permitted Transfer (not to act) 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 as 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)by applicable Delaware law.
(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 member of the Shareholders hereby Barington Group agrees that, from and after during the date hereof until Standstill Period (as defined below), without the earlier prior written consent of the Effective Time Board specifically expressed in a written resolution adopted by a majority vote of the Merger entire Board, neither it nor any of its Affiliates or Associates under its control or discretion will, and the termination it will cause each of the Merger Agreement, such Shareholder shall notits Affiliates and Associates under its control not to, directly or indirectly, unless indirectly in any manner: (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 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” (as such terms are used in the rules of the Securities and Exchange CommissionSEC) or consents to votevote any securities of the Company with respect to the election of directors, or become a participant in any election contest with respect to the Company; (ii) seek to advise or influence any Person person with respect to the voting ofof any securities of the Company; provided, however, that any member of the Barington Group and any Affiliate or Associate of any such member may disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any voting securities stockholder proposal or other matter to be voted on by the stockholders of the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than the election of directors) and the reasons therefor; (iii) otherwise publicly act, alone or in concert with others, to recommend that shareholders seek to control or influence the management, Board or policies of the Company vote in favor or initiate or take any action to obtain representation on the Board; or (iv) enter into any agreements with any third party with respect to any of the Merger foregoing, except in each case, as expressly contemplated or permitted by this Agreement, it being understood and agreed that nothing contained herein shall be construed to limit the Merger Agreement;
(vii) submit to the Company ability of 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 member of the Company’s securities Barington Group and any Affiliate or assets;
(ix) form, join or in Associate of any way participate in such member to form a “group” (as defined in Section 13(d)(3) pursuant to Rule 13d-5 promulgated by the SEC under the Exchange Act) in connection with any Act with, or acquire additional shares 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 indirectlyCommon Stock from, 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 Agreementparty. 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 2.5 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 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 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)its shareholders.
(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. (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 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 84 [***] 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
Standstill. (a) Each member of the Shareholders hereby Arbor Group severally, and not jointly, agrees that, for a period of 12 months from and after the date hereof until of this Agreement, without the earlier prior written consent of the Effective Time Board specifically expressed in a written resolution adopted by a majority vote of the Merger entire Board, he or it will not, and will cause each of his or its officers, agents and other Persons, including any Affiliates or Associates identified in the termination Arbor Schedule 13D as members of the Merger Agreement“Arbor Group” as therein defined, such Shareholder shall notacting on his or its behalf not to:
(i) engage, or in any way participate, 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 term is defined in Rule 14a-1(l) promulgated by the rules of SEC under the Securities and Exchange CommissionAct of 1934, as amended (the “Exchange Act”)) of proxies or consents (whether or not relating to votethe election or removal of directors); advise, or seek to advise encourage or influence any Person (as herein defined) with respect to the voting ofof any Voting Securities with respect to the 2008 Annual Meeting or any other meeting of the Company’s stockholders that occurs prior to the termination of this Agreement in a manner that is inconsistent with the terms of this Agreement; nominate or propose any person for election to the Board; or initiate, any voting securities propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company (including by making publicly known such Shareholder’s position on any matter presented 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 or exempt solicitations pursuant to Rule 14a-2(b)(1) or Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or encourage any other Person to initiate any such stockholder proposal; or otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act;
(viiiii) other than in connection with Section 2 hereof, seek or propose, or make any public announcement statement with respect to, any merger, consolidation, business combination, tender or submit exchange offer, sale or purchase of assets, sale or purchase of securities (except that the Arbor Group may seek or propose a proposal for, sale or offer of (with or without conditions) any extraordinary transaction involving an acquisition purchase of the Company’s securities shares of the Company beneficially owned by the Arbor Group as of the date hereof), dissolution, liquidation, restructuring, recapitalization or assetssimilar transactions of or involving the Company or any of its Affiliates;
(ixiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Arbor Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(iv) act, alone or in concert with others, to control or seek to control, or influence or seek to influence, the management, Board or policies of the Company;
(v) other than as defined previously disclosed in Section 13(d)(3the Arbor Schedule 13D, 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;
(vi) under the Exchange Actknowingly 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 or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(xvii) seek, in discuss or communicate 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 confidential information 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 respect to the Company in such amounts as are necessary and its business, including but not limited to satisfy information related to the withholding taxes due in respect evaluation of settlement of stock options any strategic alternatives under consideration by the Board; and
(viii) take or stock grants. In the event that cause or induce others to 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 The Arbor Group hereby waives any right (whether by statute or agreement) to inspect records and lists of Company stockholders (including any list of non-objecting beneficial owners) in violation of Section 3.1(a) shall be void. Each Shareholder agrees connection with the 2008 Annual Meeting, including the rights Arbor has pursuant to authorize that certain agreement dated March 12, 2008, between Arbor and request the Company, that requires the Company to notify the Company’s transfer agent that there is a stop transfer order with respect produce or provide access to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Sharescertain stockholder records.
(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 Golisano agrees that, (i) from and after the date hereof until the earlier of Closing Date and (ii) from and after the Effective Time of the Merger and the termination of the Merger AgreementClosing Date for so long as he shall be a Restricted Stockholder, 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), (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 take any action which might require Acquiror 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.make
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. Until the later of (ai) Each the second (2nd) anniversary of the Shareholders hereby agrees that, from and after the date hereof until and (ii) the earlier of date on which FP no longer has the Effective Time of right to designate a nominee for election pursuant to Section 1(a) (such later date, the Merger and the termination of the Merger Agreement“Standstill Termination Date”), such Shareholder FP Parent shall not, and shall cause each of its Affiliates not to, directly or indirectly, unless (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) specifically requested by Parent any acquisition of any equity securities (or beneficial ownership thereof), or rights or options to acquire any equity securities (or beneficial ownership thereof), or any assets or businesses of the Company or 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 to, business combination involving the Company or consent to, a Transfer of, the record its subsidiaries 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) 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 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 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 Company or otherwise act in connection concert with any person in respect of any such equity securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or to obtain representation on the Board, except as provided in this Agreement; (d) take any action (other than through non-public communications with the Company or the Board) 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 (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 5 shall (w) restrict or prohibit the FP Designee from taking any action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary to fulfill his or her fiduciary duties as a member of the Board, (x) seekrestrict the ability of FP or its Affiliates to vote their shares of the Common Stock as FP and such Affiliates determine in their sole discretion, (y) restrict FP’s acquisition of the Common Stock on the date hereof or (z) limit or restrict 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 takeway, 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 (x1) the Shareholder retains voting control rights or remedies of the Shareholder Owned Shares so Transferred FP 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 termsAffiliates, in the event that each case, in it its capacity as an administrative or collateral agent or 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 lender to the Company, such Shareholder shall notify Parent promptly as applicable or (2) any actions that FP or any 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 its Affiliates may take in their capacity as a lender 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 Boardincluding without limitation with respect to any restructuring, breaches any fiduciary duty of the Company Board debt for equity conversion or any member thereof or which otherwise challenges the Merger Agreementsimilar transaction.
Appears in 1 contract
Standstill. (a) Each of the Shareholders ▇▇▇▇▇▇▇ hereby agrees that, from and after the date hereof that until the earlier of the Effective Time (x) such time, if any, as ▇▇▇▇▇▇▇ beneficially owns less than 17.0% of the Merger then issued and outstanding shares of New Common Stock for a period of 30 consecutive days and (y) the termination Termination Date, neither ▇▇▇▇▇▇▇ nor any of its Affiliates will, acting alone, as part of a “group” (within the meaning of Section 13(d)(3) of the Merger Agreement, such Shareholder shall not, directly Exchange Act) or indirectlyotherwise in concert with any other Person, unless (i) specifically requested by Parent or (ii) expressly contemplated in writing by the terms of this Agreement or the Merger AgreementBoard on an unsolicited basis:
(i) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of after the Purchase Period (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”as defined below), or enter into any contract, option or other agreement with respect toacquire, 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 agree 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 seek or propose to acquireacquire beneficial ownership of any New Common Stock or any rights or options to acquire any New Common Stock (including from a third Person); or
(ii) initiate, directly propose, finance, negotiate, seek to effect, guarantee the financing of, assist any other Person in obtaining financing for, or indirectlyknowingly cause (1) any proxy contest or other proposal to obtain board representation, by purchase (2) any stockholder proposal, whether made pursuant to Rule 14a-8 or otherwiseRule 14a-4 under the Exchange Act or otherwise or (3) any Change of Control Transaction, except that ▇▇▇▇▇▇▇ may do any assets of the Company or any subsidiary or division thereof;foregoing with respect to a proposed Change of Control Transaction if such proposed Change of Control Transaction is subject to the voting requirements set forth in Section 2(b); or
(viiii) makeexcept with respect to a proposed Change of Control Transaction expressly subject to the voting requirements set forth in Section 2(b), or in any way participate in, directly or indirectly, any “solicitation” of “proxiessolicit” (as such terms are used in within the rules meaning of Rule 14a-1(l) under the Securities and Exchange CommissionAct) any proxies to vote, or seek to advise or influence any other Person with respect to the voting of any Voting Securities on any of the matters set forth in Section 3(a)(ii); or
(iv) except with respect to a proposed Change of Control Transaction expressly subject to the voting requirements set forth in Section 2(b), take any action that would require the Company under applicable law, rule or stock exchange policy to make a public announcement regarding any of the matters set forth in Section 3(a)(ii); or
(v) except with respect to a proposed Change of Control Transaction expressly subject to the voting requirements set forth in Section 2(b), form, join or participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities; or
(vi) nominate an individual or individuals for election to the Board at any meeting (or by written consent in lieu of a meeting) of stockholders of the Company, other than as expressly provided in this Agreement with respect to the ▇▇▇▇▇▇▇ Nominee, or effect or attempt to effect the removal of any members of the Board (other than the ▇▇▇▇▇▇▇ Nominee); provided, that compliance by ▇▇▇▇▇▇▇ with the provisions of Sections 1 or 2(b) shall not constitute a violation of this provision; or
(vii) other than as expressly provided in this Agreement with respect to the ▇▇▇▇▇▇▇ Nominee, directly or indirectly seek to elect, appoint or otherwise place (or seek to have elected, appointed or otherwise placed) a representative of ▇▇▇▇▇▇▇ on the Board, it being the express agreement of ▇▇▇▇▇▇▇ and the Company that ▇▇▇▇▇▇▇ shall be entitled to only one seat on the Board, subject to the conditions set forth in this Agreement, prior to the Termination Date; or
(viii) seek to call, or to request the call of, a special meeting of the stockholders of the Company; or
(ix) deposit any voting securities of the Company (including by making publicly known such Shareholder’s position on into a voting trust, or subject any matter presented to shareholders), other than to recommend that shareholders securities of the Company vote in favor of the Merger and the Merger Agreement;
(vii) submit to any agreement or arrangement with respect to the Company any shareholder proposal under Rule 14a-8 under the Exchange Act;
voting of such securities (viii) make any public announcement with respect toother than pursuant to Section 2 of this Agreement), or submit other agreement or arrangement having similar effect to which, in each case, a proposal for, or offer Person who is not an Affiliate 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 ▇▇▇▇▇▇▇ is a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;party; or
(x) seek, in execute 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 written stockholder consent with respect to the Company, such Shareholder shall notify Parent promptly except in accordance with Section 2 of such acquisition. Such shares this Agreement; or
(xi) except with respect to a proposed Change of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and Control Transaction expressly subject to the voting requirements set forth in Section 2(b), seek or request permission to do any of the foregoing, make, initiate, take or participate in any demand, request, action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Agreement; or
(xii) disclose any intention, plan or arrangement inconsistent with the foregoing.
(b) Notwithstanding the foregoing provisions of this AgreementSection 3, the parties to this Agreement acknowledge and agree that:
(i) at any time prior to September 30, 2010 (the number “Purchase Period”), ▇▇▇▇▇▇▇ may acquire beneficial ownership of additional shares of Company New Common Stock; provided, that in no event, before, during or after the Purchase Period, may ▇▇▇▇▇▇▇ acquire or beneficially own in excess of 45% of the shares of New Common Stock held then issued and outstanding (inclusive of the shares of New Common Stock issued to ▇▇▇▇▇▇▇ by such Shareholder the Company on the Effective Date in exchange for all of the Class 3 and Class 4 claims of ▇▇▇▇▇▇▇ pursuant to the Plan); provided further, that ▇▇▇▇▇▇▇ may acquire beneficial ownership of additional shares of New Common Stock (including after the Purchase Period) pursuant to ▇▇▇▇▇▇▇’▇ exercise of its preemptive rights set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become in Section 11, subject to the 45% beneficial ownership limitation set forth above in this Section 3(b)(i);
(ii) the provisions of Section 3(a) shall not restrict the actions of ▇▇▇▇▇▇▇ taken in respect of a Change of Control Transaction the terms of this Agreement.which require as a condition to consummation of such Change of Control Transaction compliance with the applicable voting restrictions set forth in Sections 2(b)(ii), (iii) and (iv) (and which condition is not waived); and
(diii) Prior the provisions of Section 3(a) will not limit in any respect ▇▇▇▇▇▇▇’▇ ability to privately make proposals to the termination of this Agreement in accordance Board with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid respect to 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 Companyactions, activities, or the approval of the Merger Agreement matters otherwise restricted by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the Merger AgreementSection 3(a).
Appears in 1 contract
Standstill. (a) Each During the Restricted Period, no Investor shall, and each Investor shall cause the Investor Group and any person acting on behalf of or in concert with 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 Investor Group to not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by without the terms prior written consent of this Agreement or the Merger AgreementCompany:
(i1) sellenter, transferagree to enter, tenderpropose, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign seek 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 offer 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 facilitate any merger, business combination, recapitalization, restructuring, tender offer, transaction involving a material amount of the economic interest in the Shareholder Owned Shares Company’s assets or enter into any other extraordinary transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any assets of involving the Company or any subsidiary or division thereof;of its subsidiaries,
(vi2) initiate, encourage, make, or in any way participate or engage in, directly or indirectly, any “solicitation” of “proxies” or “consent solicitation” (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any Person person with respect to the voting of, any voting securities Preferred Shares, Common Shares (including, without limitation, any Newly Acquired Common Shares) or other Equity Securities (including, for the avoidance of doubt, indirectly by means of communication with the Company (including by making publicly known such Shareholder’s position on any matter presented to shareholderspress or the media), other than to recommend that shareholders of the Company vote in favor of the Merger and the Merger Agreement;,
(vii3) submit to the Company nominate or recommend for nomination a person for election at 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 meeting at which trustees of the Company’s securities or assets;board of trustees (the “Board”) are to be elected,
(ix4) submit any shareholder proposal for consideration at, or bring any other business before, any shareholder meeting of the Company,
(5) 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 Preferred Shares, Common Shares (including, without limitation, any Newly Acquired Common Shares) or other Equity Securities,
(6) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company,
(7) otherwise act, alone or in concert with others, to seek to control or influence the management, policies, business or corporate structure of the Company,
(8) demand a copy of the Company’s list of shareholders or its other books and records pursuant to any statutory right, whether under the laws of the State of Maryland or any other jurisdiction,
(9) 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 trustees 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 that, for the avoidance of doubt, this clause shall not prevent any Investor from bringing an action to enforce the provisions of this Agreement),
(10) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or
(11) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with any of the foregoing;.
(xb) seekDuring the Restricted Period, in no Investor shall (and each Investor shall cause the Investor Group to not), directly or indirectly, without the prior written consent of the Company, (i) make any way which may be reasonably likely to require, involve request directly or trigger public disclosure of such request pursuant to applicable Lawindirectly, to have amend or waive any provision of this Section 3.1 amended3 (including this sentence), modified (ii) take any action challenging the validity or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose enforceability of avoiding or circumventing any provision of this Section 3.1 3 (including this sentence) or which could make any public disclosure in respect thereof or (iii) take any 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 make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this Section 3 with 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 As used herein, the term “Derivative Security” means (i) any subscription, option, conversion right, warrant, phantom stock right or other agreement, security or commitment of any kind obligating the Company or any of its subsidiaries to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any Common Shares or Preferred Shares of the termination Company or any security convertible into, or exchangeable for, any Common Shares or Preferred Shares of this Agreement in accordance with its termsthe Company or (ii) any obligations measured by the price or value of any Common Shares or any Preferred Shares of the Company, 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 case 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 each of the partiesforegoing clauses (i) and (ii), 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 whether 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 foregoing is exercisable immediately, only after the Company, passage of time or upon the approval satisfaction of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board one or any member thereof or which otherwise challenges the Merger Agreementmore conditions.
Appears in 1 contract
Standstill. (a) Each of the Shareholders hereby agrees that, from From and after the date hereof Closing until the earlier fourth (4th) anniversary of the Effective Time of Closing Date (the Merger and “Initial Standstill Period”), unless otherwise approved, or an exemption or waiver is otherwise approved, by the termination of the Merger AgreementUnaffiliated Directors, such Shareholder Theta shall not, and shall cause each of its Affiliates not to, directly or indirectly, unless (i) specifically requested by Parent alone or (ii) in concert with any other Person, except as otherwise expressly contemplated by the terms of set forth in this Agreement or the Merger Agreement:Section 4.1(a):
(i) selloffer to acquire or agree to acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing, transferexcept
(A) pursuant to stock splits, tenderreverse stock splits, pledgestock dividends or distributions, encumbercombinations, assignreclassifications or any similar recapitalizations, hypothecate, distribute, grant, gift, encumber, assign (B) acquisitions of Company Ordinary Shares or otherwise dispose of (whether by merger, operation of Law Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or otherwise) (collectively, a “Transfer”Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), or enter into any contract, option (C) acquisitions or other agreement purchases of Company Shares pursuant to and in accordance 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 SharesArticle VI;
(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, acquire or agree to acquire, directly or indirectly, by purchase or otherwise, acquire any assets of the Company or any subsidiary of its Subsidiaries that are material to the operations, financial condition or division thereofprospects of the Company and its Subsidiaries, taken as a whole;
(iii) induce or attempt to induce any third party (it being understood that a “third party” shall exclude Affiliates of Theta, which shall be subject to the restrictions under clause (i) above) to propose or offer to acquire Beneficial Ownership of Company Shares (other than the Company Shares held by the Shareholder Group as and to the extent permitted in accordance with Section 4.2);
(iv) seek the election, appointment or removal of any Directors or seek a change in the composition or size of the Board (in each case, other than through the appointment or removal of any Shareholder Designee);
(v) except (A) as otherwise required by applicable Law or (B) in case of a proposed Directed Issue, make or cause to be made any press release or similar public announcement or public communication relating to the way it intends to, or does, vote its Company Shares at any meeting of the shareholders of the Company or in connection with any action by written consent at or in which Company Shares are entitled to vote;
(vi) makedeposit any Company Shares into a voting trust or subject any Company Shares to any proxy, arrangement or agreement with respect to the voting of such any Company Shares or other agreement having a similar effect (provided that nothing in this clause (vi) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion, or (B) restricting the rights of Theta under Section 4.2);
(vii) other than as permitted under the foregoing clause (v), initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, 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 Voting Securities (including by making publicly known such Shareholder’s position on any matter presented to shareholders), other than to recommend provided that shareholders of the Company vote nothing in favor of the Merger and the Merger Agreement;
this clause (vii) submit to the shall be interpreted as preventing Theta and its Affiliates from voting its Company any shareholder proposal under Rule 14a-8 under the Exchange ActShares, whether in person or by proxy, as it determines in its sole discretion);
(viii) make publicly call or publicly requisition a call for any public announcement with respect togeneral, special or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition meeting of the Company’s securities or assetsshareholders (other than pursuant to Section 4.2(e)); foregoing;
(ix) formmake any public statement or disclosure inconsistent with the
(x) assist, join advise, induce or attempt to induce (or provide any confidential information of the Company or any of its Subsidiaries for the purpose of assisting, advising, inducing or attempting to induce) any third party to take, or take any affirmative action to do, any of the foregoing; or
(xi) propose or seek an amendment or waiver of any of the provisions of this Section 4.1(a).
(b) From and after the Initial Standstill Period to the date that the Shareholder Group ceases to Beneficially Own any Company Class B Shares (the “Subsequent Standstill Period”), unless otherwise approved, or an exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as otherwise expressly set forth in this Section 4.1(b):
(i) seek the election, appointment or removal of any Directors or seek a change in the composition or size of the Board (in each case, other than through the appointment or removal of any Shareholder Designee);
(ii) deposit any Company Shares into a voting trust or subject any Company Shares to any proxy, arrangement or agreement with respect to the voting of such any Company Shares or other agreement having a similar effect with respect to any matter on which the Company Class B Shares are not entitled to vote pursuant to Section 10 of the Articles of Association (provided that nothing in this clause (iii) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion or (B) restricting the rights of Theta under Section 4.2);
(iii) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, 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 takein, directly or indirectly, any actions solicitation of proxies to vote, or seek to influence any Person with respect to the voting of, any Voting Securities with respect to (A) any matter on which the Company Class B Shares are not entitled to vote pursuant to Section 10 of the Articles of Association, or (B) any proposal by Theta or its Affiliates to effect a Company Change of Control (provided that nothing in this clause (iv) shall be interpreted as preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion);
(iv) publicly call or publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders with respect to (A) any matter on which the Company Class B Shares are not entitled to vote pursuant to Section 10 of the Articles of Association (other than pursuant to Section 4.2(e)), or (B) any proposal by Theta or its Affiliates to effect a Company Change of Control; or
(v) make any public statement or disclosure inconsistent with the purpose foregoing. Notwithstanding anything to the contrary in the foregoing, during the Subsequent Standstill Period the Shareholder Group shall be permitted to offer to acquire, agree to acquire or acquire Beneficial Ownership of avoiding any Company Shares in addition to any Company Class B Shares acquired at Closing in the following circumstances (A) pursuant to stock splits, reverse stock splits, stock dividends or circumventing distributions, combinations, reclassifications or any provision similar recapitalizations, (B) acquisitions of this Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 3.1 5.2(b), (C) acquisitions or which could reasonably be expected purchases of Company Shares pursuant to have the effect of preventing, impeding, interfering and in accordance with or adversely affecting the consummation Article VI and (D) in connection with an offer to acquire all of the transactions contemplated by outstanding Capital Stock of the Merger AgreementCompany, including the Mergertaking of any preparatory measures in connection with such offer, or including obtaining undertakings from the Company’s shareholders to sell their shares in connection with such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, the following Transfers are expressly permitted under this Agreement offer (each such Transferoffer together with any preparatory measures, a "Permitted Transfer"): “Shareholder Group Tender Offer”); provided, that Theta and its Affiliates shall have consulted with the Unaffiliated Directors at least twenty (i20) a pledge of Business Days prior to making such Shareholder Owned Shares required under any credit facility in existence on Group Tender Offer. Upon 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 making of a Shareholder (or to a trust for Group Tender Offer, the benefit of a family memberrestrictions set forth in Section 4.1(b) or to a charitable organization if (x) shall be suspended until such time that the Shareholder retains voting control of the Shareholder Owned Shares so Transferred Group Tender Offer is either withdrawn 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 grantscompleted. In the event that any (i) a majority of Unaffiliated Directors recommend the Shareholder effects a Permitted Transfer Group Tender Offer or (other than a Permitted Transfer described in clause (ivii) following completion of such Shareholder Group Tender Offer, the Shareholder Group holds two thirds of the immediately preceding sentence)then-outstanding Voting Securities, including in connection with a Shareholder Owned Shares Proposal (subject to compliance with then Section 3.3(b)), such Shareholder 4.1(b) shall promptly (and in any event within 24 hours after consummation thereof) notify Parent automatically terminate upon completion 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 SharesGroup Tender Offer.
(c) Prior If, at any time during the Initial Standstill Period or the Subsequent Standstill Period, (i) the Company enters into definitive documentation providing for a transaction that, if consummated, would constitute a Company Change of Control; (ii) the Board publicly announces its determination that (A) it will sell or dispose of, or has commenced a process by which it proposes to sell or dispose of, the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, (B) will consider offers or proposals for a transaction that, if consummated, would result in a Company Change of Control, or (C) the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, is for sale; or (iii) a tender, takeover, exchange or similar offer that, if consummated, would constitute a Company Change of Control is commenced or the subject of an announcement of a firm intention to be made or commenced by any Person or group of Persons acting in concert and the Board either (x) publicly recommends that shareholders of the Company tender their shares of the Company to the termination Person or group of Persons acting in concert making such offer or (y) fails to recommend that the shareholders of the Company reject such offer, in each case within ten (10) Business Days after the date of commencement or posting of such offer, then, in any such case, the provisions of Section 4.1(a) and Section 4.1(b) shall terminate immediately and all other provisions of this Agreement shall remain in full force and effect; provided, however, that if, (x) with respect to clause (i) of this sentence, such transaction is terminated without being consummated, (y) with respect to clause (ii) of this sentence, the Board has publicly announced that it has rescinded such determination or (z) with respect to clause (iii) of this sentence, such offer or similar transaction is withdrawn, terminated or expires without being consummated or if the Board publicly recommends that the shareholders of the Company reject such offer, then, in any such case all provisions of Section 4.1 previously terminated shall be reinstated and shall be in full force and effect in accordance with their terms from and after the date of such termination, public announcement, withdrawal or expiration, as the case may be; provided further, that such reinstatement shall not prevent Theta or any of its termsAffiliates from continuing to pursue any activities described in this Section 4.1(c) that were definitively commenced after the date of such termination, in the event that a Shareholder acquires record but at 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 prior to the Company, such Shareholder shall notify Parent promptly date 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 Agreementreinstatement.
(d) Prior Notwithstanding anything to the termination contrary in this Section 4.1, nothing herein shall prohibit or prevent Theta or any of this Agreement its Affiliates from acquiring securities of, or from entering into any merger or other business combination with, another Person that Beneficially Owns any Company Shares; provided, however, that (i) such other Person shall have acquired such Company Shares or other securities other than 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 contemplation of the Merger Agreement by Theta or any of its Affiliates acquiring the Companysecurities of, or entering into any such merger or other business combination with, such Person; (ii) the approval Beneficial Ownership of the Merger Agreement such Company Shares or other securities by the Company Board, breaches any fiduciary duty of the Company Board such other Person shall not be a primary reason for Theta or any member thereof of its Affiliates acquiring the securities of, or which otherwise challenges entering into any such merger or other business combination with, such other Person; and (iii) the Merger Agreementcombined Beneficial Ownership of such Company Shares of Theta or any of its Affiliates entering into the business combination and such other Person would not result in Theta or any of its Affiliates or such other Person being required, pursuant to the Finnish Securities Market Act, to commence a mandatory tender offer to acquire additional Company Shares.
Appears in 1 contract
Sources: Shareholder Agreement
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 time as the restrictions in this paragraph 13 terminate pursuant to the terms of this Agreement (such period, the Effective Time of the Merger and the termination of the Merger Agreement“Restricted Period”), such Shareholder Investor shall not, and shall cause its Affiliates and Associates under its control or direction (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” (ias such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “Exchange Act”)) sell, transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign 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 consents;
b) knowingly encourage, advise or enter into influence any contractother Person or knowingly assist any Person in so encouraging, option advising or other agreement influencing any Person with respect to, to the giving or consent to, a Transfer of, the record or beneficial ownership or both or voting power, withholding of any or all of the Shareholder Owned Shares;
(ii) enter into any voting agreement, proxy, consent or power of attorney other authority to vote (other than such encouragement, advice or influence that is consistent with respect to, or deposit into a voting trust, the Shareholder Owned SharesBoard’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 and the rules promulgated thereunder with any entity or person unaffiliated with Investor and 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 propertyany Voting Securities;
(ivd) transfer make or in 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 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 otherwise, any assets of 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 Investor from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any 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 Securities and Exchange Commissiontypes of matters set forth above in this paragraph;
(i) to voteseek, alone or in concert with others, election or appointment to, or seek to advise representation on, the Board or influence any Person with respect to nominate or propose the voting nomination of, or recommend the nomination of, any voting securities candidate to the Board, except as otherwise permitted in this Agreement, or (ii) seek, alone or in concert with others, the removal of any member of the Company (including by making publicly known Board, provided, however, that nothing in this Agreement shall prevent Investor or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such Shareholder’s position on any matter presented to shareholders), other than to recommend that shareholders of actions do not create a public disclosure obligation for Investor or the Company vote and are undertaken on a basis reasonably designed to be confidential and in favor of the Merger and the Merger Agreementaccordance in all material respects with Investor’s normal practices in similar circumstances;
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);
(viiig) make any request for stock list materials or other books and records of the Company under the Maryland General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
h) make any 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 Certificate of Incorporation or bylaws, or other actions which may affect or impede the acquisition of control of the Company by any person;
(ixi) formenter into any negotiations, join agreements or in any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection understandings with any of the foregoing;
(x) seek, in Third Party to take any way which may be reasonably likely to require, involve or trigger public disclosure of such request action that Investor is prohibited from taking pursuant to applicable Law, to have this paragraph 13; or
j) make any provision of this Section 3.1 amended, modified public request or waived;
(xi) otherwise takesubmit any public proposal, directly or indirectly, any actions with the purpose of avoiding to amend 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 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 the restrictions in this paragraph 13 shall terminate automatically upon the earliest of (di) Prior to the termination as a non-exclusive remedy for any material breach 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(including, breaches without limitation, a failure to appoint the Investor Nominee or Additional New Director and otherwise constitute the Board in accordance with paragraph 1, a failure to appoint a replacement in accordance with paragraph 6, or a failure to issue the Company Press Release in accordance with paragraph 11), upon ten (10) business days’ prior written notice by Investor following any fiduciary duty such material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that Investor is not in material breach of this Agreement at the time such notice is given, (ii) 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, and (iii) the commencement of any tender or exchange offer (by a person other than Investor or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a 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 Certificate of Incorporation or bylaws of the Company that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any member thereof future Company Annual Meeting of Stockholders, and nothing contained in this paragraph 13 shall prevent Investor from (i) privately communicating with the Company or which the Board, (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, and (iii) publicly commenting on any earnings announcement of the Company so long as any such communication is non-disparaging and otherwise challenges not in violation of any of the Merger provisions in this paragraph 13. Nothing in this Agreement shall prevent the Company from responding to such Investor statements, subject to the obligations of the Parties under paragraph 14, or the Company or Investor from responding to any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by Investor or any of its Affiliates or by the Company or any of its Affiliates, as applicable). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 13 shall prohibit or restrict the Investor Nominee or the Additional New Director from exercising his or her rights and fiduciary duties as a director of the Company or restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company.
Appears in 1 contract
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) (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. 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