Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement: (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions; (b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents; (c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any); (d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”); (e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company; (f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement); (g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”); (h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company; (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)); (j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or (k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 5 contracts
Sources: Investor Agreement (SK Ecoplant Co., Ltd.), Investor Agreement (SK Ecoplant Co., Ltd.), Securities Purchase Agreement (SK Ecoplant Co., Ltd.)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 18 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 5 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. During the period (Each Stockholder agrees that, until such period, the “Standstill Term”) commencing as time that such Stockholder beneficially owns Voting Stock representing less than 5% of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the outstanding shares of Common Stock then issued and outstanding(on an as-converted basis), the Investor (including SK ecoplant and the SPV) and none of it or its Subsidiaries shall not Affiliates will, directly or indirectly, do any of the following, except as approved, invited following unless requested or waived approved in advance in writing by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares[Reserved.]
(b) acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire beneficial ownership any shares of Preferred Stock or Common Stock (including any derivative securities or contracts or instruments in any way related thereto) of the Company such that after such acquisition the Stockholder and its Affiliates or any direct or indirect parent of such Stockholder would beneficially own more than 49.99% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument (on an as-converted basis); provided that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing foregoing restriction in this Section 2.1(a3.2(b) shall prevent not apply to any acquisition (i) pursuant to Section 4.2 (Preemptive Rights) of this Agreement or prohibit any Stockholder’s exercise of its Right of First Refusal in connection with a Transfer that is permitted by Section 3.1 or (ii) that is the Investor from investing in a fund with respect to which result of operation of Section 10 (Anti-Dilution Adjustments) of the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock EquivalentsCertificate of Designations;
(c) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (iwithin the meaning of Rule 14a-1 under the Exchange Act) seek to have called vote any meeting of the stockholders Voting Stock of the Company or propose any matter its subsidiaries, or call or seek to be voted upon by the stockholders call a meeting of the Company, ’s stockholders or (ii) propose initiate any stockholder proposal for action by the Company’s stockholders or nominate for election to seek the removal of any director from the Board any person whose nomination has not been approved by a majority of the Board Company (excluding the Investor Designee, if anyother than pursuant to Article II of this Agreement);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by make any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)public announcement with respect to, or seek to advise submit a proposal for, or influence any Person, offer of (with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwithout conditions) any merger, consolidation, business combination, tender or exchange offer, purchase restructuring, recapitalization or other extraordinary transaction of the Company’s assets or businesses, purchase of any securities of involving the Company or any Derivativeof its subsidiaries or their securities or assets (except (i) any nonpublic proposal to the Board that would not require the Company, such Stockholder or any similar transaction involving the Company other Person to make any public announcement or other disclosure with respect thereto or (ii) any recapitalization, restructuring, liquidation public disclosure in any filings by the Stockholder or other extraordinary transaction its Affiliates with respect the SEC to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”extent required by applicable law or stock exchange rules);
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used defined in the rules Section 13(d)(3) of the SEC Exchange Act) in connection with respect to any Voting Stock of the Company or its subsidiaries, including with any securities of the Company;
(i) request or propose to the Board or the Company (other Stockholder or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, Affiliates; provided that taking any amendment or waiver of any provision action as required by this Agreement shall not constitute a violation of this Section 2.1 (including 3.2(e); provided further that the foregoing restriction in this clause (i))Section 3.2(e) shall not apply to any action taken in connection with the previously announced merger of Charter Communications, Inc. and the Liberty Broadband Stockholder and shall not apply upon completion of such merger;
(jf) make any public announcement regarding, or take any action that could would reasonably be expected to cause or require of the Company to make a public announcement regarding, a potential Business Combination regarding any actions prohibited by this Section 3.2;
(g) contest the validity or any enforceability of the matters set forth in clauses (a) through (i) abovethis Section 3.2; or
(kh) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements with (whether written or oral) with, or advise, assist or encourage, any Person relating other persons to do any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 3.2 shall preventlimit, restrictrestrict or prohibit (i) any confidential, encumbernon-public discussions with or communications or proposals to management or the Board by the Stockholder, its Affiliates or limit representatives related to any of the foregoing, (ii) a Stockholder’s ability to vote, Transfer, convert, exercise its rights under Section 4.2 (Preemptive Rights) or Section 3.3 (Right of First Refusal) or otherwise exercise rights with respect to its Common Stock or Preferred Stock in any manner: accordance with the terms and conditions of this Agreement and the Certificate of Designations or (Aiii) the Investor ability of any Director to vote or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its otherwise exercise his or her duties or otherwise act in his or her capacity as a member of the Board; provided, further, that, for the avoidance of doubt, any shares of Preferred Stock and Common Stock held by a Stockholder or its Permitted Transferee shall be subject to the terms and restrictions set forth in this Agreement and the Certificate of Designations, including the limitations on voting set forth in Section 12 of the Certificate of Designations. Notwithstanding the foregoing, the restrictions set forth in this Section 3.2 shall not apply if any of the following occurs (provided, that, in the event any matter described in clauses (a) or (Cb) of this paragraph has occurred and resulted in the restrictions imposed under this Section 3.2 ceasing to apply to a Stockholder, then, in the event the transaction related to such matter has not occurred within twelve (12) months of the date on which the Stockholder was released from such restrictions, then so long as such transaction is not being actively pursued at such time, the restrictions set forth in this Section 3.2 shall thereafter resume and continue to apply in accordance with their terms (provided that such restrictions shall not resume and continue to apply if such Stockholder has publicly taken any tangible steps with respect to any action or matter that would be prohibited by this Section 3.2 and such Stockholder is at that time continuing to pursue such action or matter, in which case such restrictions shall resume and continue to apply following such time as such Stockholder has ceased to pursue such action or matter)): (a) in the event the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (including, but not limited to, beneficial ownership) Voting Stock of the resulting corporation having 50% or less of the votes that may be cast generally in an election of directors if all outstanding Voting Stock were present and voted at a meeting held for such purpose; or (b) in the event that a tender offer or exchange offer for at least 50.1% of the Capital Stock of the Company is commenced by a third person (and not involving any breach, by a Stockholder, of this Section 3.2), which tender offer or exchange offer, if consummated, would result in a Change of Control, and either (1) the Investor directors (excluding any Directors) recommend that the stockholders of the Company tender their shares in response to such offer or do not recommend against the tender offer or exchange offer within ten (10) business days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (2) the directors (excluding any Directors) later publicly recommend that the stockholders of the Company tender their shares in response to such offer. Notwithstanding the foregoing, solely with respect to the Liberty Broadband Stockholder, references in this Section 3.2 to Affiliates shall mean Affiliates acting at the direction of or in concert with the Liberty Broadband Stockholder or any of its Affiliates from exercising their Permitted Transferees and any of the foregoing Persons’ respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSubsidiaries.
Appears in 4 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.)
Standstill. (a) During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date each Wynnefield Party shall not, and continuing until the later of shall cause his or its Representatives not to, directly or indirectly:
(i) seek, alone or in concert with others, (A) to call a meeting of stockholders, (B) representation on the second Board, except as specifically contemplated in Section 1 of this Agreement or (2ndC) anniversary the removal of any member of the Second Closing Date, Board;
(ii) the date on which the Investor ceases to have the right to designate a director solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Board pursuant to Section 5shares of the Common Stock, and (iii) or from the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of the Schedule 14A promulgated under the Exchange Act) in or assist, encourage, advise or influence any Third Party (as defined below) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock then issued (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(iii) (A) form or join in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any shares of Common Stock (for the avoidance of doubt, excluding any group composed solely of the Wynnefield Parties and outstandingtheir Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Investor Company’s stockholders (including SK ecoplant other than to the Wynnefield Parties and their Affiliates and the SPVnamed proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust or similar arrangement (other than (x) to the Wynnefield Parties and its Subsidiaries shall not do their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case, of the following, except Wynnefield Parties and their Affiliates);
(iv) execute any written consent as approved, invited or waived by a stockholder with respect to the Company or the Boardits Common Stock, or except as contemplated by this Agreement:;
(av) without the approval of the Board, separately or in conjunction with any Third Party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly (including in communications to the media) propose or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other than Permitted Purchases and purchases similar business transaction involving the Company or a material amount of Preemptive Right Sharesthe assets or businesses of the Company or actively encourage, directly initiate or indirectly, acquire beneficial ownership support any other Third Party in any such activity; provided that the Wynnefield Parties shall be permitted to sell or tender their shares of Common Stock and/or or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction; and provided further that if a Third Party (not a Party or an Affiliate of a Party) commences an unsolicited tender offer or exchange offer for all of the outstanding shares of Common Stock Equivalents and/or any instrument or other Voting Securities that gives is recommended by the Investor Board, then the economic equivalent of ownership of an amount of securities Wynnefield Parties shall similarly be permitted to commence a tender offer or exchange offer for all of the Company (outstanding shares of Common Stock or other Voting Securities at the same or higher consideration per share, unless the decision of the Board to recommend such Third Party unsolicited tender offer or exchange offer is supported by a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit majority of Wynnefield Designees serving on the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsBoard;
(bvi) make a tender, exchange present at any annual meeting or other public offer to acquire Common Stock and/or Common Stock Equivalentsany special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(c) directly or indirectly, (ivii) seek to have called the Company waive, amend or modify any meeting provisions of the stockholders Company’s Certificate of Incorporation or Bylaws;
(viii) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or propose make any matter request pursuant to be voted upon Rule 14a-7 under the Exchange Act or otherwise, except as is reasonably necessary to enable the Wynnefield Parties to effect a tender offer or exchange offer permitted under Section 5(a)(v);
(ix) institute, solicit or join, as a party, or remain as a class member in any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the stockholders Wynnefield Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Wynnefield Parties or ▇▇▇▇▇▇ ▇▇▇▇ and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of the Company, Wynnefield Parties from responding to or complying with a validly issued legal process (iiand the Company agrees that this Section 5(a)(ix) propose or nominate for election shall apply mutatis mutandis to the Board Company and its directors, officers, partners, members, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the Wynnefield Parties);
(x) comment publicly (including in communications to the media) concerning the Company’s management, policies, strategy, operations, financial results or affairs or any person whose nomination transactions involving the Company or any of its subsidiaries, except (i) with respect to any Extraordinary Transaction that has not been approved by a majority of the Wynnefield Designees on the Board, (ii) with respect to the Wynnefield Parties’ commencing of a tender offer or exchange offer in accordance with Section 5(v), and (iii) as otherwise expressly permitted by this Agreement;
(xi) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by any of the Wynnefield Parties to any person in a private transaction (or a series of related private transactions) that is not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company, or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would result in the Wynnefield Parties selling in excess of 4.9% of the shares of Voting Securities beneficially owned by the Wynnefield Parties at such time, other than to a Third Party that agrees to be bound by the provisions of Section 5 of this Agreement during the term of this Agreement; or
(xii) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, partners, members, employees, agents or Affiliates of the Company, directly or indirectly, amend or waive any provision of this Agreement (including this Section 5 (a)(xii)). Notwithstanding anything to the contrary contained in this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Wynnefield Parties nor their respective Affiliates shall be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of the Company, in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Wynnefield Parties or their respective Affiliates, the Company or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to the Company of any such director or officer and applicable law, rules or regulations; (excluding B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Wynnefield Party, provided that a breach by such Parties of this Agreement is not the Investor Designeecause of the applicable requirement; (C) privately communicating to any of their potential investors or investors factual information regarding the Company, provided that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed; or (D) responding to or complying with a validly issued legal process.
(b) The provisions of this Section 5 shall not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to the Company and its stockholders and the Company Policies. Except as otherwise provided in this Agreement, the provisions of this Section 5 shall also not prevent the Wynnefield Parties from freely voting their respective shares of Common Stock.
(c) During the Standstill Period, each Wynnefield Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of the Company or any other persons to engage in actions which, if any);taken by such Party, would violate this Agreement.
(d) directly Anything to the contrary in this Section 5 or indirectlyelsewhere in this Agreement (including Section 2) notwithstanding, encouragethe Wynnefield Parties shall not be prohibited from (i) nominating directors for election at the 2021 Annual Meeting, accept (ii) submitting proposals for consideration by stockholders at the 2021 Annual Meeting; (iii) soliciting proxies for the election of its director nominees or support a tenderapproval of its stockholder proposals at the 2021 Annual Meeting, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in compliance with Regulation 14A under the Exchange Act); (iv) requesting that a proposal for consideration by stockholders at the 2021 Annual Meeting be included in the Company’s proxy materials for the 2021 Annual Meeting, in compliance with Rule 14a-8 under the Exchange Act; or seek to advise (v) making any public or influence private communication in connection with any Person, with respect to voting of any securities of the Company;
(f) deposit foregoing, in compliance with Rule 14a-9 and any securities other applicable provision of Regulation 14A under the Exchange Act. Anything to the contrary in Section 2 or elsewhere in this Agreement notwithstanding, the Company shall not be prohibited from (i) soliciting proxies in a voting trust or subject any securities of the Company opposition to any arrangement nomination, solicitation or agreement with respect proposal permitted to be made by the voting of such securities, including the granting of any proxy (other than Wynnefield Parties pursuant to this AgreementSection 5(d);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of in compliance with Regulation 14A under the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company Exchange Act or (ii) making any recapitalization, restructuring, liquidation public or other extraordinary transaction private communication in connection with respect to the Companyforegoing, in each case without compliance with Rule 14a-9 and any other applicable provision of Regulation 14A under the prior written consent Exchange Act.
(e) The provisions of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (gxii) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect Section 5(a) shall cease to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination apply following the public announcement of an Extraordinary Transaction that has been approved by the Company after the Second Closing Date that it has entered into Board and which is opposed by a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Wynnefield Designees serving on the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Settlement Agreement (Wynnefield Partners Small Cap Value Lp I), Settlement Agreement (MVC Capital, Inc.), Settlement Agreement (MVC Capital, Inc.)
Standstill. During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchasers, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Warburg Pincus & Co., and (iii) Warburg Pincus Partners LLC, shall not, without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementits Board of Directors:
(a) other than acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the Exchange Act), by purchase or otherwise, any Voting Stock of the Company or direct or indirect rights to acquire any Voting Stock of the Company, or of any successor to or person in control of the Company, or any assets of the Company or any Subsidiary or division of the Company or of any such successor or controlling person, provided, however, that the Purchasers, Warburg Pincus & Co., and Warburg Pincus Partners LLC may acquire in one or more transactions an aggregate number of shares of Voting Stock equal to the Permitted Purchases and purchases of Preemptive Right SharesAmount.
(b) make, or in any way participate, directly or indirectly, acquire beneficial ownership in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect proxies” to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securities, including any Voting Stock of the granting of any proxy Company (other than pursuant to this Agreementin such Purchaser’s Representatives’ capacities as a member of the Company’s Board of Directors in a manner consist with his or her fiduciary duties);
(gc) propose make any public announcement with respect to, or submit a proposal for or offer of (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of (including to the Company’s assets or businessesBoard of Directors), purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(hd) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used 13D Group in the rules connection with any of the SEC with respect foregoing;
(e) otherwise act or seek to control or influence the Company management or any securities Board of Directors or policies of the Company;
, whether alone or in concert with others (i) request other than in such Purchaser’s Representatives’ capacities as a member of the Company’s Board of Directors in a manner consistent with his or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)her fiduciary duties);
(jf) make any public announcement regarding, or take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ie) above;
(g) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 3.1 in a manner that would require public disclosure; or
(kh) enter into discussionsdirect or instruct any of their respective Subsidiaries, negotiationsRepresentatives or Affiliates to take any such action. Notwithstanding the foregoing, arrangements if, at any time during the Standstill Period,
(i) any person or agreements 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) acquires Beneficial Ownership of Voting Stock of the Company representing 40% or more of the then outstanding Voting Stock of the Company;
(ii) any person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) announces or commences a tender or exchange offer to acquire Voting Stock of the Company which, if successful, would result in such person or 13D Group owning, when combined with any Person relating other Voting Stock of the Company owned by such person or 13D Group, 50% or more of the then outstanding Voting Stock of the Company;
(iii) the Company enters into, or resolves to enter into, any merger, sale or other business combination transaction pursuant to which the outstanding shares of Common Stock would be converted into cash and/or securities and/or property of another person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) or 50% or more of the outstanding shares of Common Stock as of immediately prior to such transaction would be owned by persons other than the then current holders of shares of Common Stock and any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives; then, except as otherwise provided herein, the Standstill Period shall be suspended and tolled during the pendency of any such event with respect to the foregoing actions referred to in Purchasers, their respective Subsidiaries and Representatives and the provisions of subparagraphs (a) through (g) shall not be applicable to the Purchasers, their respective Subsidiaries and Representatives during the pendency of any such event. For the avoidance of doubt, the Standstill Period shall resume and be extended by an amount of time equal to the time during which such event was pending, and the provisions of subparagraphs (a) through (g) shall resume to be applicable to the Purchasers, their respective Subsidiaries and Representatives in the event that the provisions of (i) above; providedthrough (iii) cease to be applicable, howeversuch as, that nothing contained in this Section 2.1 shall preventfor example and without limitation, restrictdisposition of the Voting Stock of the Company to below 40% by the person or 13D Group, encumberwithdrawal of the tender or exchange offer by the person or 13D Group, or limit in any manner: (A) the Investor termination of merger, sale or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofother business combination transaction.
Appears in 3 contracts
Sources: Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Nuance Communications, Inc.)
Standstill. During Subject to the period (such period, the “Standstill Term”) commencing as provisions of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingsentence next following, the Investor (including SK ecoplant and the SPV) agrees that until January 1, 1999 it and its Subsidiaries Affiliates shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, direct or indirect rights or options to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities, direct or indirect rights or options to acquire any voting securities, or securities or instruments convertible into voting securities, of the Company (a “Derivative”)Company, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, (i) seek in any "solicitation" of "proxies" to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Act)proxy rules of the SEC) securities of the Company, or seek to advise or influence any Person, person or entity with respect to any voting of any securities of the Company;
, (fc) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " within the rules meaning of Section 13(d)(3) of the SEC Exchange Act, with respect to the Company or any voting securities of the Company;
, (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jd) make any public announcement regarding, with respect to or take any action that could require make or submit a proposal or offer (with or without conditions) for the securities or assets of the Company to make a public announcement regarding, a potential Business Combination or any of extraordinary transaction involving the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates Subsidiaries, (e) submit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from making confidential, nonpublic proposals any regulatory agency with respect to the Board for a transaction involving a Business Combination following the public announcement by an acquisition of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its securities or assets, (f) otherwise act alone or in concert with others to seek to control the management, board of directors or policies of the Company; or (g) propose any of the foregoing unless and until such proposal is specifically invited by the Company. Based on the representations of Rothschild to the Company that Affiliates of Rothschild (which representation Rothschild hereby reaffirms) not under control of Rothschild have no access to any of the internal information or files of Rothschild and receive no information, recommendations or advice from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this AgreementRothschild, the Purchase AgreementCompany agrees that the prohibitions of the preceding sentence shall not apply to any Affiliates of Rothschild that are not under the control of Rothschild and are engaged in the regular business of trading in publicly-traded securities, Joint Venture Agreementso long as such affiliates have not received, or been given access to, any of the Preferred Distributor AgreementConfidential Information and have not received any instructions, recommendations or advice pertaining to an investment in each case, in accordance with or control of the terms hereof and thereofCompany from any party having access to any of the Confidential Information.
Appears in 3 contracts
Sources: Investment Agreement (Pacific Gulf Properties Inc), Investment Agreement (Five Arrows Realty Securities L L C), Investment Agreement (Five Arrows Realty Securities L L C)
Standstill. During The Stockholder agrees that, for a period of 18 months from the period (such perioddate hereof, the Stockholder will not, and will not cause or permit any of its directors, officers, partners, employees, representatives, financial, legal, accounting and other advisers and agents, including persons who after the date of this Agreement cease to be within one of the foregoing categories (collectively, “Standstill TermRepresentatives”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company affiliates or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation associates (as such terms are defined in Regulation 14A Rule 12b-2 under the Exchange Act) to (i) directly or indirectly acquire, or offer, propose or agree to acquire, any securities, debt obligations or assets (or any interests therein) of the Company or any of its subsidiaries or any rights or options to acquire any such securities, debt obligations or assets (for purposes hereof, “securities” shall include, without limitation, (x) all rights to acquire securities pursuant to the exercise of any rights in connection with any option, warrant, convertible or exchangeable security or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (y) any economic interest relating to securities, including without limitation, pursuant to a cash settled option or other derivative security, contract or instrument in any way related to the price of the underlying security), (ii) participate in the solicitation of proxies, or seek to advise or influence any Person, with respect to voting the vote of any securities of the Company;
(f) deposit person, regarding any securities or debt obligations of the Company or any of its subsidiaries, (iii) engage, or offer, propose or agree to engage, in a voting trust any merger or subject other business combination or acquisition transaction or any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, reorganization, or any purchase or sale of the Company’s any material amount of assets or businesses, purchase equity or debt securities or other indebtedness of any securities of or regarding the Company or any Derivativeof its subsidiaries, (iv) seek or propose to influence or control the Company’s management or policies, including the management and policies of its subsidiaries, (v) advise, assist, encourage, finance or invest in any similar transaction involving person in connection with any of the foregoing, (vi) disclose any plan, intention or proposal to do any of the foregoing, (vii) make any communications with the Company or its Representatives that could require the Company to make any public announcement or (iiviii) make any recapitalization, restructuring, liquidation request to waive or other extraordinary transaction with respect amend any provision of this agreement or to the Companypermit you to take any action specified herein, in each case without the prior written consent approval of the Board (a transaction described Company. Nothing in clauses (i) and (ii) that would result in a Change of Controlthis paragraph shall be deemed to prevent the Stockholder’s Representatives from engaging, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules ordinary course of the SEC with respect to the Company or any business, in brokerage, asset management, trust, underwriting, market making and other similar financial services ordinary course business activities involving securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Stockholder Agreement (Gramercy Capital Corp), Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.), Agreement for Sale of Membership Interests (Gramercy Capital Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director Prior to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingTermination Date, except as approvedotherwise provided in this Agreement, invited or waived by without the Company or prior written approval of the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Investor shall not, and purchases of Preemptive Right Sharesshall cause its respective controlled Affiliates, not to, directly or indirectly, in whole or in part (in each case, except as permitted by this Agreement):
(a) acquire, offer or seek to acquire, agree to acquire beneficial ownership or acquire rights to acquire (except by way of Common Stock and/or Common Stock Equivalents and/or stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis or as a result of forming a group not prohibited by Section 3(c) below), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company (other than through a “Derivative”)broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, exceptor other beneficial ownership interest in, nothing 10% or more than of the then-outstanding shares of the Common Stock in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsaggregate;
(b) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a tenderproponent of any stockholder proposal for consideration at, exchange or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other public offer business brought before, any Stockholder Meeting; (v) call or seek to acquire Common Stock and/or Common Stock Equivalentscall, or request to call of, alone or in concert with others, any Stockholder Meeting, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as amended and as may be further amended from time to time, the “Certificate of Incorporation”) or the Amended and Restated Bylaws (as amended and as may be further amended from time to time, the “Bylaws”), including any “town hall meeting”; or (vi) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) directly form, join or indirectly, (i) seek in any way participate in any group or agreement of any kind with respect to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, including in connection with any election or (ii) propose or nominate for election removal contest with respect to the Board Company’s directors or any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)stockholder proposal or other business brought before any Stockholder Meeting;
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting thereof;
(e) seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Certificate of Incorporation or Bylaws;
(f) make any public proposal with respect to: (i) any change in the number or term of directors serving on the Board or the filling of any proxy vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other than change in the Company’s management, governance, corporate structure, affairs or policies, (iv) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (v) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to this Agreement)Section 12(g)(4) of the Exchange Act;
(g) initiate, cause, effect (or seek, offer or propose (ito effect) any mergerExtraordinary Transaction or make, consolidationdirectly or indirectly, business combinationany proposal, tender either alone or exchange offerin concert with others, purchase of the Company’s assets or businesses, purchase of any securities of to the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in reasonably be expected to require a Change of Control, is referred to as a “Business Combination”)public announcement or disclosure regarding any such matter;
(h) act in concert enter into any agreements with any Third Party with respect to any of the foregoing, or advise, assist or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyforegoing;
(i) publicly make or in any way advance publicly any request or propose to proposal that the Company or the Board amend, modify or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));Agreement; or
(j) make any public announcement regarding, or take any action that could require challenging the validity or enforceability of this Section 3 or this Agreement unless the Company to make a public announcement regarding, a potential Business Combination is challenging the validity or any enforceability of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovethis Agreement; provided, however, that nothing contained (i) the restrictions in this Section 2.1 3 shall not prevent, restrict, encumber, prohibit or limit in any manner: restrict Investor or its Representatives from making (A) any factual statement as required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over the Investor or any party from whom information is sought (so long as such request did not arise as a result of its Affiliates from making confidentialaction by Investor), nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) any private or confidential communication to or with the Investor Designee from performing its duties as a member Board or any officer or director of the Board; Company or legal counsel that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties or (C) any private or confidential communication regarding the Company to or with Investor’s or its controlled Affiliates’ investors or potential investors that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties and (ii) the restrictions in this Section 3 shall not restrict Investor or any of its Affiliates Representatives from exercising their respective rightstendering shares, performing their respective obligations receiving payment for shares or otherwise consummating participating in any such transaction on the transactions contemplated same basis as the other stockholders of the Company or from participating in any such transaction that has been approved by the Board, subject to the other terms of this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Cooperation Agreement (Cutera Inc), Cooperation Agreement (Cutera Inc), Cooperation Agreement (Pura Vida Investments, LLC)
Standstill. Section 4.1. During the period (such periodStandstill Period, the “Standstill Term”) commencing as Shareholder shall not, directly or indirectly, and shall cause its Representatives (to the extent acting on behalf of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPVShareholder) and its Subsidiaries beneficially own less than five percent (5.0%) of Group Members not, directly or indirectly, to, without the shares of Common Stock then issued and outstandingprior written consent of, or waiver by, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases subject to Section 4.2, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to the Company or the Board of Preemptive Right SharesDirectors) to acquire, directly by purchase or indirectlyotherwise (including through the acquisition of Beneficial Ownership), any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities (including any Equity Securities or Voting Securities) or Derivative Instruments, of the Company or any Subsidiary or Affiliate of the Company or any successor to or Person in Control of the Company, or any securities (including any Equity Securities or Voting Securities) or indebtedness convertible into or exchangeable for any such securities or indebtedness; provided that the Shareholder may acquire, offer or seek to acquire, agree to acquire or make a “Derivative”), except, nothing in this Section 2.1(aproposal to acquire Ordinary Share Equivalents (and any securities (including any Equity Securities or Voting Securities) shall prevent convertible into or prohibit the Investor from investing in a fund exchangeable for Ordinary Share Equivalents) and Derivative Instruments with respect to which Ordinary Share Equivalents, if, immediately following such acquisition, the Investor does collective Beneficial Ownership of Ordinary Share Equivalents of the Shareholder and its Group Members, as a group, would not have or share decision-making authority over investment or divestment decisionsexceed the Standstill Level;
(b) make offer, or seek to acquire, or participate in any acquisition of a tendermajority of the consolidated assets of the Company and its Subsidiaries, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentstaken as a whole;
(c) directly conduct, fund or indirectlyotherwise become a participant in any “tender offer” (as such term is used in Regulation 14D under the Exchange Act or the Israeli Companies Law) involving Equity Securities, (i) seek to have called Voting Securities or any meeting of the stockholders of the Company securities convertible into, or propose any matter to be voted upon exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the stockholders Board of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Directors;
(d) directly otherwise act in concert with others to seek to control or indirectly, encourage, accept influence the Board of Directors or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities shareholders of the Company or its Subsidiaries or Affiliates; provided that nothing in this clause (if such offer d) shall preclude the Shareholder or proposal would, if consummated, result its Representatives from engaging in a Change of Control of discussions with the Company, such offer Company or proposal is referred to as an “Acquisition Proposal”)its Representatives;
(e) directly make or indirectly, solicit proxies or consents or propose or seek join or become a participant (as defined in a solicitation Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or in any way knowingly encourage) any “solicitation” of “proxies” (as such terms are defined in Regulation 14A as promulgated by the SEC and assuming for this purpose that the Company was subject to the proxy rules under Section 14 of the Exchange Act) (including, in each case, similar concepts under Israeli law, including submission of positions statements), or seek consent to vote any Voting Securities or any of the voting securities of any Subsidiaries or Affiliates of the Company (including through action by written consent), or otherwise knowingly advise or influence any Person, Person with respect to the voting of any securities of the CompanyCompany or its Subsidiaries or Affiliates;
(f) deposit make any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement public announcement with respect to the voting of such securitiesto, including the granting of any proxy or solicit or submit a proposal for, or offer, seek, propose or indicate an interest in (other than pursuant to this Agreement);
(g) propose (iwith or without conditions) any merger, consolidation, business combination, “tender offer” (as such term is used in Regulation 14D under the Exchange Act or exchange offerthe Israeli Companies Law), recapitalization, reorganization, purchase or license of a material portion of the Company’s assets assets, properties, securities or businesses, purchase of any securities indebtedness of the Company or any DerivativeSubsidiary or Affiliate of the Company, or any other similar extraordinary transaction involving the Company, any Subsidiary of the Company or any of its securities or indebtedness, or enter into any discussions, negotiations, arrangements, understandings or agreements (iiwhether written or oral) with any recapitalization, restructuring, liquidation other Person regarding any of the foregoing;
(g) call or other extraordinary transaction with respect seek to call a meeting of shareholders of the Company or initiate any shareholder proposal or meeting agenda item for action of the Company’s shareholders, in each case without the prior written consent of or seek election or appointment to or to place a representative on the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Directors or seek the removal of any director from the Board of Directors;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join join, become a member or in any way participate in a “partnershipGroup (other than with the Shareholder, limited partnership, syndicate, any of its Group Members or any counterparty (other group” as such terms are used than a Prohibited Transferee) in the rules of the SEC connection with a Hedging Arrangement that complies with Section 2.1(c)(iv)) with respect to the securities of the Company or any securities of the Companyits Subsidiaries or Affiliates;
(i) request deposit any Voting Securities in a voting trust or propose similar Contract or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Board or the Company (Shareholder or any of its officerswholly owned Subsidiaries, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly (ii) as part of a Hedging Arrangement that complies with Section 2.1(c)(iv) or indirectly, any amendment or waiver of any provision of this (iii) in accordance with Section 2.1 (including this clause (i)3.1);
(j) make any public announcement regardingproposal or disclose any plan, or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to make any proposal or disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) knowingly take any action or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to take any action on its or their behalf, that could would reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or any of its Subsidiaries or Affiliates to publicly disclose any of the matters set forth foregoing actions or the possibility of a business combination, merger or other type of transaction or matter described in clauses this Section 4.1;
(al) through (i) aboveknowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party with respect to any of the foregoing; or
(km) enter into discussionsdirectly or indirectly, negotiationscontest the validity of, arrangements any provision of this Section 4.1 (including this subclause) or agreements with any Person relating Section 3.1 (whether by legal action or otherwise).
Section 4.2. The prohibition in Section 4.1(a) shall not apply to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) activities of the Investor Shareholder or any of its Affiliates from making confidentialGroup Members in connection with:
(a) acquisitions made as a result of a stock split, nonpublic proposals to stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board for of Directors; or
(b) acquisitions made in connection with a transaction involving a Business Combination following or series of related transactions in which the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor Shareholder or any of its Affiliates from exercising their respective rightsGroup Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, performing their respective obligations Voting Securities or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementDerivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the Preferred Distributor Agreementtime of the consummation of such acquisition, provided that in connection with any such acquisition, (i) the Shareholder or such applicable Group Member, as the case may be, either (A) causes such entity to divest the Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the acquired entity within a period of one hundred twenty (120) calendar days after the date of the consummation of such acquisition or (B) divests the Equity Securities, Voting Securities or Derivative Instruments, or any other securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the Shareholder and its Affiliates, in each casean amount so that the Shareholder and its Affiliates, together with such acquired business entity, shall not, acting alone or as part of a Group, directly or indirectly, Beneficially Own a number of Ordinary Share Equivalents in accordance with excess of the Standstill Level following such acquisition, and (ii) prior to the disposition thereof, such Ordinary Share Equivalents or other Voting Securities remain subject to the terms hereof and thereofof this Agreement in all respects.
Appears in 3 contracts
Sources: Stockholders Agreement (Allergan PLC), Shareholder Agreement (Allergan PLC), Shareholder Agreements (Teva Pharmaceutical Industries LTD)
Standstill. During the term of his employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent holder of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any voting securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kiii) enter into discussionsbe employed by any person that, negotiationsdirectly or through its affiliates, engages in any of the foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or other awards, plans and arrangements and any other Common Stock received or agreements otherwise acquired by the Executive in connection with any Person relating or as a result of the Executive’s employment with the Company or service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Executive, the Executive will no longer be subject to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any limitations of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSections 7(d).
Appears in 3 contracts
Sources: Separation Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. During The Stockholder agrees that, for a period of three years following the period date hereof (such periodthe "Standstill Period"), the “Standstill Term”it will not (and it will ensure that its affiliates (and any person acting on behalf of or in concert with it or any affiliate) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datewill not), without ACE's prior written approval, (iia) purchase or otherwise acquire (or enter into any agreement or make any proposal, including any proposal which is made public, to purchase or otherwise acquire) any securities of ACE, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities if upon any such purchase or acquisition the date on which the Investor ceases to have Stockholder owns or has the right to designate a director to the Board pursuant to Section 5, and acquire (iiiwhether or not presently) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) or more of the outstanding voting shares of Common Stock then issued and outstandingACE, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tendersolicit proxies from stockholders of ACE or otherwise seek to influence or control the management or policies of ACE or any of its affiliates, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any voting securities of the Company;
(i) request or propose to the Board or the Company (ACE or any of its subsidiaries, (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of ACE, (e) disclose any intention, plan or arrangement inconsistent with the foregoing or (f) assist, advise or encourage any other person in doing any of the foregoing; provided, however, that this Section 8 shall not prohibit the purchase or other acquisition of securities of ACE by any person described in Rule 13d-1(b)(1)(i) and (ii) of the Exchange Act. The Stockholders also agree during such period not to request ACE (or its directors, officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesemployees or agents), directly or indirectly, to amend or waive any amendment or waiver of any provision provisions of this Section 2.1 8 (including this clause (i));
(jsentence) make any public announcement regarding, or take any action that could which might require the Company ACE to make a public announcement regardingregarding the possibility of a business combination, a potential Business Combination merger or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofextraordinary transaction.
Appears in 3 contracts
Sources: Stockholder Support Agreement (Ace LTD), Stockholder Support Agreement (Ace LTD), Stockholder Support Agreement (Ace LTD)
Standstill. During From the period date of this Agreement until the Expiration Date (such period, the “Standstill TermPeriod”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage or advise any other Person or assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than Permitted Purchases and purchases such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of Preemptive Right Sharesthe Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(d) (i) engage in, or become a party to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or clause (ii) if such acquisition or transaction would result in the Investors having beneficial ownership of greater than 9.99% of the Company’s outstanding common stock;
(e) sell, offer or agree to sell, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives through swap or hedging transactions or otherwise, voting rights decoupled from the Investor the economic equivalent of ownership of an amount of securities underlying common stock of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit held by the Investor from investing in a fund with respect Investors to which the Investor does not have or share decision-making authority over investment or divestment decisionsany Third Party;
(bf) make a tenderor in any way participate, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called in any meeting tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the stockholders assets of the Company and its subsidiaries, taken as a whole (each, an “Extraordinary Transaction”), it being understood and agreed that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or propose otherwise participating in any matter to be voted upon by such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board; or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any of the types of matters set forth above in this paragraph;
(g) enter into a voting trust or proxy, arrangement or agreement or subject any Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved by the Board;
(h) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as set forth herein, or (ii) propose seek, alone or nominate for election to in concert with others, the Board removal or resignation of any person whose nomination has not been approved by a majority member of the Board (excluding other than the Investor Designee, if anyNew Director);
(di) directly make or indirectly, encourage, accept be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or support a tender, exchange otherwise);
(j) make any request for stock list materials or other offer or proposal by any other Person or group (an “Offeror”) for securities books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(if such offer k) make any public statement or public proposal wouldwith respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, if consummated, result (ii) any change in a Change of Control the capitalization or dividend policy of the Company, such offer (iii) any other material change in the Company’s management, business or proposal is referred corporate structure, (iv) any waiver, amendment or modification to as an “Acquisition Proposal”);
(e) directly the Company’s certificate of incorporation or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)By-Laws, or seek to advise or influence any Person, with respect to voting other actions which may impede the acquisition of any securities of the Company;
(f) deposit any securities control of the Company in by any person, (v) causing a voting trust or subject any class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any arrangement securities exchange or agreement with respect to the voting (vi) causing a class of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any Derivativelitigation, arbitration or any similar transaction other proceeding against or involving the Company or any of its current or former directors or officers (iiincluding derivative actions) in order to effect or take any recapitalizationof the actions expressly prohibited by this paragraph 6; provided, restructuringhowever, liquidation or other extraordinary transaction that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the CompanyCompany against a Restricted Person, in each case without the prior written consent of the Board or (D) responding to or complying with a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)validly issued legal process;
(hm) act in concert enter into any negotiations, agreements or understandings with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms that the Investors are used in the rules of the SEC with respect prohibited from taking pursuant to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveparagraph 6; or
(kn) enter into discussions, negotiations, arrangements make any request or agreements with submit any Person relating proposal to amend or waive the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in terms of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, case which would reasonably be expected to result in accordance with the terms hereof and thereofa public announcement of such request or proposal.
Appears in 3 contracts
Sources: Investment Agreement (Cooperman Leon G), Letter Agreement (Glen Capital Partners Focus Fund, L.P.), Board Matters Agreement (Lionbridge Technologies Inc /De/)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that during the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Standstill Period he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall behalf not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire by purchase, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange offer, agreement or other offer business combination or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting manner beneficial ownership of any securities of the Company, if after completion of such acquisition or proposed acquisition, the members of the Shareholder Group, in the aggregate, would beneficially own more than ten percent (10%) of the outstanding shares of Common Stock (based on the latest annual, quarterly or other report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), excluding the acquisition of equity-based compensation pursuant to Section 11 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation;
(fb) deposit submit any securities shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of the Company in a voting trust nomination or subject other business for consideration, or nominate any securities of the Company to any arrangement or agreement with respect candidate for election to the voting of such securitiesBoard or oppose the directors nominated by the Board, including the granting of any proxy (other than pursuant to as expressly permitted by this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than (i) with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement), (ii) to the extent such a group may be deemed to result with the Company any of its Affiliates as a result of this Agreement or (iii) a voting agreement entered into pursuant to a Sale Transaction (as defined below) which has been approved by a majority of the Board;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act, in each case, to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than the Shareholder Group and their Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been publicly announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇, in his capacity as a shareholder of the Company, to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the Company, or members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request or propose to the Board or the Company (engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make any public announcement regarding, demand or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any request for inspection of the matters set forth in clauses (a) through (i) above; orCompany’s records under the Georgia Business Corporation Code;
(k) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(l) take or cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit ▇▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either approved by the Board or required for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement ▇▇▇▇▇▇▇ to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. During From the period date of this Agreement until the expiration of the Commitment Period, each of the Investors shall not, and shall cause its Affiliates (such periodcollectively, the “Standstill TermRestricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateshall instruct their respective Representatives not to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases engage in any “solicitation” (as such term is used in the proxy rules of Preemptive Right Shares, directly the SEC) of proxies or indirectly, acquire beneficial ownership consents with respect to the election or removal of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities directors of the Company (or become a “Derivative”), except, nothing participant” (as such term is used in this Section 2.1(athe proxy rules of the SEC) shall prevent in any such solicitation of proxies or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsconsents;
(b) make (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board, (iii) conduct a tenderreferendum of stockholders of the Company or (iv) seek to call, exchange request the call of or join with any other public offer stockholder in a request to acquire Common Stock and/or Common Stock Equivalentscall, a special meeting of the Company’s stockholders;
(c) directly make or indirectly, be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act) relating to the Company;
(d) encourage or advise any Person or assist any Person in encouraging or advising any other Person (i) seek with respect to have called the giving or withholding of any meeting proxy or consent relating to, or other authority to vote, any Voting Securities, or (ii) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with management’s recommendation in connection with a particular matter, in the case of each of (i) and (ii), solely with respect to the election or removal of directors;
(e) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of the stockholders Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with the other Investors and Affiliates of the Company Investors with respect to Voting Securities;
(f) acquire, or propose offer, seek or agree to acquire, by purchase or otherwise, or direct any matter to be voted upon by Third Party in the stockholders acquisition of, any Voting Securities of the Company, or (ii) propose engage in any swap or nominate for election hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Board any person whose nomination has not been approved by a majority Investors having beneficial ownership of more than 10.0%, or economic exposure to more than 10.0%, of the Board (excluding the Investor Designee, if any)outstanding Company Shares;
(dg) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in enter into a voting trust or subject any securities of the Company to any trust, arrangement or agreement with respect to the any Voting Securities, or subject any Voting Securities to any voting of such securitiestrust, including the granting of any proxy (arrangement or agreement, other than pursuant to (i) this Agreement), (ii) solely with the other Investors or Affiliates of the Investors, or (iii) granting proxies to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting;
(gh) propose except as set forth herein, make any public proposal with respect to (i) any merger, consolidation, business combination, tender change in the number or exchange offer, purchase term of directors or the Company’s assets or businesses, purchase filling of any securities of vacancies on the Company or any DerivativeBoard, or any similar transaction involving the Company or (ii) any recapitalizationwaiver, restructuring, liquidation amendment or other extraordinary transaction with respect modification to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities Governing Documents of the Company;
(i) request grant any proxy, consent or propose other authority to vote with respect to the Board election of directors other than to the named proxies included in the Company’s proxy card for an annual meeting;
(j) engage in, or the Company (offer to or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to engage in, directly or indirectly, any amendment transaction (including through swap or waiver hedging transactions or otherwise) that (i) reduces in any material respect the economic risk of ownership of any Company Shares owned by it or the other Restricted Persons or (ii) decouples the economic risk of ownership from the underlying Voting Securities owned by it or the other Restricted Persons;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction with respect to any security) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Voting Securities;
(l) either alone or in concert with others, directly or indirectly, make any tender offer, exchange offer or be a party to any merger, consolidation, acquisition, business combination, purchase of a division, purchase of substantially all of the assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company or any of its subsidiaries or its or their respective securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Restricted Persons or their Representatives from tendering shares, receiving payment for shares or otherwise participating in any such transaction initiated by a Third Party on the same basis as other stockholders of the Company or from participating in any such transaction that has been approved by the Board);
(m) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 8 other than to enforce the provisions of this Agreement and to defend (and/or assert counterclaims in) any litigation in which any Restricted Person is a defendant;
(n) make any request for stock list materials or other books and records of the Company under Section 2-512 of the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(o) make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) in support of any solicitation described in clauses (a), (b), (c) or (m) above;
(p) publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 2.1 (including this clause (i));paragraph 8; or
(jq) make any public announcement regardingrequest or submit any proposal to amend or waive the terms of this Agreement, or take any action that could require the Company in each case which would reasonably be expected to make result in a public announcement regardingof such request or proposal. Notwithstanding anything to the contrary in this Agreement, a potential Business Combination nothing in this paragraph 8 shall prohibit or restrict the Investors from: (i) communicating privately with the Board or any of the matters set forth Company’s officers regarding any matter in clauses a manner that does not otherwise violate this Section 8; (aii) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained in this Section 2.1 shall prevent, restrict, encumberhas, or limit in any manner: (A) may have, jurisdiction over the Investor Investors or any of their respective Affiliates in a manner that does not otherwise violate this paragraph 8; or (iii) communicating with its investors in quarterly or annual letters provided such communications are subject to standard confidentiality obligations. The Investors acknowledge and agree that they shall be liable for any breach by their respective Affiliates from making confidentialor Representatives of any of the terms of this Agreement applicable to such Representatives. In addition, nonpublic proposals the Company agrees to provide the Investors, upon the Investors’ reasonable request, with the same degree, type and frequency of access to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member and members of the Board; or (C) Company’s senior management that is customarily provided to other stockholders with similarly sized shareholdings in the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Letter Agreement (PHH Corp), Letter Agreement (EJF Capital LLC)
Standstill. During Until the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Termination Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingGroup agrees that, except as approved, invited or waived by the Company or the Board, or as contemplated by otherwise specifically provided in this Agreement:
(a) other than Permitted Purchases and purchases , no member of Preemptive Right Sharesthe Investor Group shall, in any way or in any capacity, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities alone or in concert with others, except for such actions as Nominee may take in his capacity as a director of the Company in support of transactions and initiatives approved or undertaken by the Board:
a. make, or in any way participate in, or encourage any “solicitation” (a as such term is used in the proxy rules of the Securities and Exchange Commission (the “DerivativeSEC”), except, nothing in this Section 2.1(a) shall prevent of proxies or prohibit the Investor from investing in a fund consents with respect to which the Investor does not have election or share decision-making authority over investment removal of directors or divestment decisionsany other matter or proposal;
b. initiate, propose or otherwise “solicit” (bas such term is used in the proxy rules of the SEC) make a tenderstockholders of the Company for the approval of any stockholder proposal, exchange whether made pursuant to Rule 14a-8 or other public offer to acquire Common Stock and/or Common Stock EquivalentsRule 14a-4 under the Exchange Act or otherwise;
(c) directly or indirectly, (i) c. seek to have called any call, or to request the call of, or call a special meeting of the stockholders of the Company Company; or, in its capacity as a stockholder, make a request for or propose take any matter action to be voted upon by the stockholders obtain or retain any list of the Company’s stockholders or other Company records;
d. seek election or appointment to, or (ii) propose representation on, or nominate for election to or propose the Board nomination of any person whose nomination has not been approved by a majority candidate to, the Board, except as specifically contemplated in Section 1; or seek the removal of any member of the Board (excluding Board, or a change in the Investor Designee, if any)composition or size of the Board;
(d) directly e. form or indirectlyjoin in a partnership, encouragelimited partnership, accept or support a tender, exchange syndicate or other offer or proposal by any other Person or group, including, without limitation, a group (an “Offeror”as defined under Section 13(d) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) Voting Securities, deposit any securities of the Company in Voting Securities into a voting trust or subject any securities Voting Securities to any voting agreement (other than solely with other members of the Company Investor Group with respect to Voting Securities now or hereafter owned by them in accordance with the terms of this Agreement) or take any arrangement other action that would limit or agreement otherwise restrict the ability of the Investor Group to vote or cause to be voted the Investor Voting Securities held from time to time in accordance with this Agreement;
f. with respect to the voting of such securitiesCompany or the Voting Securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act or (ii) participate in, or take any action pursuant to, any “stockholder access” proposal that may be implemented by the SEC, whether in accordance with former Rule 14a-11 or otherwise;
g. except at the request of the Board, acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any Voting Securities generally), whether by purchase, tender or exchange offer, directly through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any Voting Securities if, as a result of such acquisition, the members of the Investor Group would beneficially own in the aggregate in excess of 14.5% of the then outstanding Voting Securities;
h. except at the request of the Board, seek, propose, participate in, support, facilitate or assist any third party to seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivativeof its Affiliates or Associates;
i. except at the request of the Board, enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any similar transaction involving other Person in connection with any of the Company foregoing;
j. make any public statement or (ii) public disclosure regarding any recapitalizationintent, restructuringpurpose, liquidation plan or other extraordinary transaction proposal with respect to the Board, the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlits management, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly policies or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (affairs or any of its officerssecurities or assets or this Agreement that is inconsistent with the provisions of this Agreement, directorsincluding any intent, Affiliates employeespurpose, attorneysplan or proposal that is conditioned on, accountantsor would require waiver, financial advisors and other professional representatives)amendment, directly nullification or indirectlyinvalidation of, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a any public announcement regardingdisclosure relating to any such intent, a potential Business Combination purpose, plan, proposal or any of the matters set forth in clauses (a) through (i) abovecondition; or
(k) enter into discussions, negotiations, arrangements k. take any action challenging the validity or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in enforceability of this Section 2.1 shall prevent, restrict, encumber2, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by request the Company after or Board to agree to amend or to waive any provision of this Section 2 either publicly or in a manner that is reasonably likely to require the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) Company to disclose the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofrequest publicly.
Appears in 2 contracts
Sources: Board Nomination Agreement (Magnetek, Inc.), Board Nomination Agreement (Fundamental Global Partners)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s Affiliates or agents or other persons acting on which the Investor (including SK ecoplant his or its behalf not to, and SPV) and will cause his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall respective Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called any meeting of the stockholders of the Company alone or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by in concert with any other Person individual or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldentity, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationby purchase, tender or offer, exchange offer, purchase of the Company’s assets agreement or businessesbusiness combination or any other manner, purchase beneficial ownership of any securities of the Company or any Derivative, or securities of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Affiliate of the Company, in each case without the prior written consent if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than 14.99% of the Board (a transaction described in clauses (i) and (ii) that would result in a Change outstanding shares of Control, is referred to as a “Business Combination”)Common Stock;
(hb) act in concert with submit any Third Party shareholder proposal (pursuant to take Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any action in clauses notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(ac) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the SEC nominees of the Board at the 2011 Annual Meeting or 2012 Annual Meeting as set forth in this Agreement;
(e) seek, in any capacity other than as a member of the Board, to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(f) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) publicly disparage any member of the Board or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Navarre Corp /Mn/)
Standstill. During the The Receiving Company agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) on the date hereof and terminating on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which that is eighteen months from the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingdate hereof, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither it nor any of the followingits Restricted Affiliates will, except as approved, unless specifically invited or waived in writing by the Company Company, directly or the Boardindirectly, or as contemplated by this Agreementin any manner:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acquire alone or in concert with others, by purchase or otherwise, any direct or indirect beneficial ownership interest in more than two percent (2%) of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, more than two percent (2%) of the economic equivalent of ownership of an amount of voting securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany of its subsidiaries;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to acquire Common Stock and/or Common Stock Equivalentsvote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any of its subsidiaries;
(c) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or any of its subsidiaries;
(d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting material portion of the stockholders assets, tangible or intangible, of the Company or any of its subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any material portion of the assets of the Company or any of its subsidiaries, except for such assets as are then being offered for sale by the Company or any of its subsidiaries, including those offered in the ordinary course of business;
(e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any of its subsidiaries which are prohibited by clauses (a) or (d) of this Section 5, except for such assets as are then being offered for sale by the Company or any of its subsidiaries;
(f) otherwise, alone or in concert with others, propose to the Company or any of its affiliates or any of their respective stockholders any merger, business combination, restructuring or recapitalization with the Company or any of its subsidiaries or seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or any of its subsidiaries or nominate any person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to any of its subsidiaries; provided that the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
foregoing clause (f) deposit shall not be construed to restrict the Receiving Company from taking (or refraining from taking) any securities action in the ordinary course of its commercial relationship with the Company in a voting trust under the Commercial Agreements or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)otherwise;
(g) propose (i) make any mergerrequest or proposal to amend, consolidation, business combination, tender waive or exchange offer, purchase terminate any provision of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);this Section 5; or
(h) act in concert announce an intention to do, or enter into any arrangement or understanding with others to do, any Third Party to take any action in of the actions restricted or prohibited under clauses (a) through (g) aboveof this Section 5; provided that, ornotwithstanding anything to the contrary in clauses (a) through (h) of this Section 5, if (1) a third party or group (A) publicly announces its intention to commence or commences a tender or exchange offer for at least 20% of the outstanding capital stock of the Company or (B) otherwise acquires at least 15% of the outstanding capital stock of the Company, (2) a third party publicly announces or commences a proxy contest with respect to the election of any directors of the Company in support of the third party’s proposal or offer relating to the foregoing, or (3) the Company enters into an acquisition or business combination (or an agreement related thereto) in which (A) the security holders of the Company would not own a majority of the surviving entity, (B) the Company is selling all or substantially all of the Company’s assets or (C) any person or group of persons would acquire, directly or indirectly, form, join (I) beneficial ownership of (x) 50% or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities more of the Company;
’s outstanding capital stock, (iy) request securities convertible into more than 50% of the Company’s outstanding capital stock or propose (z) any options, warrants or other rights to acquire more than 50% of the Board Company’s outstanding capital stock, or (II) control of the Company (or any within the meaning of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesRule 405 under the Securities Act of 1933), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or then the Receiving Company shall be entitled to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters actions set forth in clauses (a) through (ih) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.
Appears in 2 contracts
Sources: Confidentiality Agreement (Vital Images Inc), Confidentiality Agreement (Magenta Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership in excess of 12% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companybusiness for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved or oppose the directors nominated by a majority of the Board (excluding the Investor Designeeprovided, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities that such nominees were not nominated in contravention of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the Shareholder Group or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” in support of all of the nominees of the Board at any securities stockholder meeting;
(e) call or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(if) request publicly disclose, or propose to cause or facilitate the Board public disclosure (including, without limitation, the filing of any document or report with the Company (SEC or any other governmental agency or any disclosure to any journalist, member of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly the media or indirectlysecurities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or waiver this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Section 2.1 Agreement;
(including g) disparage the Company or any member of the Board or management of the Company, provided that this clause provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation or are subject to contractual provisions providing for confidential disclosure;
(h) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(i));) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Telecommunication Systems Inc /Fa/)
Standstill. During ▇▇▇▇▇▇ shall not, and shall cause each other Person in the period (such period▇▇▇▇▇▇ Group not to, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later Governance Committee, acting alone or as part of a group: (i) the second (2nd) anniversary of the Second Closing Dateacquire, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardpropose, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesoffer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of Meritage (other than securities owned beneficially by any Person in the ▇▇▇▇▇▇ Group) or any of its subsidiaries or any material portion of the assets of Meritage or any of its subsidiaries or divisions, provided however, that if ▇▇▇▇▇▇ ▇▇▇▇▇ shares that bring his beneficial ownership of Common Stock and/or Common Stock Equivalents and/or Voting Securities below 5% of the outstanding Voting Securities of Meritage, ▇▇▇▇▇▇ or any instrument Person in the ▇▇▇▇▇▇ Group may reacquire Voting Securities from time to time provided that gives as a result of such acquisitions the Investor the economic equivalent of aggregate beneficial ownership of an amount of securities Voting Securities by the ▇▇▇▇▇▇ Group does not increase and thereafter exceed 4.99% of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting outstanding Voting Securities of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or Meritage; (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)make, or seek to advise or influence in any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orway participate, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other groupsolicitation” of “proxies” (as such terms are used in the rules of the SEC SEC) to vote or seek to advise or influence any Person with respect to the Company or voting of any securities of Meritage, or otherwise seek to control or influence the Company;
management of Meritage or its Board of Directors by means of statements or communications with any party other than Meritage’s Chief Executive Officer, Chief Financial Officer, or General Counsel or members of its Board of Directors; (iiii) request make any public announcement with respect to, or propose to the Board submit a proposal for, or the Company offer of (with or without conditions) any extraordinary transaction involving Meritage or any of its securities or assets, or take any other action that might reasonably be expected to force Meritage to make a public announcement regarding any of the matters of the type set forth in clauses (i) through (iii) of this Section 5(b); (iv) form, join, or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing clauses (i) through (iii) of this Section 5(b), (v) make or support in any fashion any shareholder proposal not supported by the Governance Committee or the Board of Directors of Meritage; (vi) call, or encourage any other Person to call, any special or annual meeting of shareholders of Meritage, (vii) cause Meritage’s directors, officers, directors, Affiliates employees, attorneysagents (including investment bankers), accountants, financial advisors and other professional representatives)partners or Affiliates to, directly or indirectly, engage in negotiations with, provide any amendment information to, induce or waiver attempt to induce or give encouragement to, any Person, in furtherance of any change of control of Meritage (whether pursuant to a tender or exchange offer, a stock or asset sale or a merger, consolidation, amalgamation, plan or arrangement or any other form of transaction), or any transaction that would be inconsistent with or frustrate the purpose of this Agreement, (viii) execute any written consent in lieu of a meeting of shareholders of Meritage except a written consent solicited by or on behalf of the Governance Committee or the Board of Directors of Meritage or (ix) except with his, her or its own personal financial and tax advisors, discuss Meritage or its business affairs or prospects with financial analysts, bankers, investment bankers, fund managers, investors or any other Persons engaged in the financial markets; provided, that nothing in this clause (ix) shall preclude ▇▇▇▇▇▇ from discussing such matters with such Persons as they relate to his historical roles with Meritage or in connection with capital raising activities for business ventures so long as any such discussions, activities or ventures are conducted by ▇▇▇▇▇▇ in compliance with this Agreement, the Settlement Agreement and his continuing obligations under Sections 8 and 9 of the Employment Agreement. In addition, ▇▇▇▇▇▇ agrees not to request Meritage to directly or indirectly amend or waive any provision of this Section 2.1 (including this clause (i5(b));
(j) make any public announcement regarding, or to take any action that designed to or which could reasonably be expected to require the Company Meritage to make a public announcement regarding, a potential Business Combination or regarding any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5(b).
Appears in 2 contracts
Sources: Cooperation Agreement (Meritage Homes CORP), Cooperation Agreement (Meritage Homes CORP)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date Period and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to unless otherwise approved by the Board pursuant to Section 5, and of Directors (iii) the date on which the excluding any Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingDesignees), the Investor (including SK ecoplant will not, and the SPV) and will cause each of its Subsidiaries shall Affiliates, directors, officers or employees not do any of the followingto, except as approveddirectly or indirectly, invited or waived by the Company or the Board, acting alone or as contemplated by this Agreementpart of a 13D Group:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire or agree, directly or indirectlyoffer, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)propose, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationwhether by purchase, tender or exchange offer, purchase by joining any 13D Group or otherwise, to acquire ownership of any, (x) of the businesses or material assets of the Company or any Significant Subsidiary (except for any transaction in the ordinary course of business), (y) any Equity Securities or any equity securities of any Significant Subsidiary, or (z) rights or options to acquire such ownership other than (i) the delivery of the Shares pursuant to the Stock Purchase Agreement, (ii) the acquisition of the Company’s assets securities as a result of any stock splits, stock dividends or businessesother distributions or recapitalizations or offerings made available by the Company to holders of Common Stock, purchase including rights offerings, (iii) any acquisition of the Company’s securities approved by the Board of Directors (excluding any Investor Designees), or (iv) any acquisition of the Company’s securities pursuant to a Permitted Transfer (each event listed in clauses (i) through (iv), a “Permitted Acquisition”);
(b) engage in any “solicitation” (within the meaning of the Exchange Act) of proxies or consents relating to the election of directors with respect to the Company, or become a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than the Investor Designees, or call, or seek or propose to call, any meeting of the Company’s shareholders in connection therewith;
(c) in any manner, agree, attempt, seek or propose to deposit any securities of the Company or any Derivativerights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Equity Securities of the Company in any voting trust or similar arrangement;
(d) form or join in the formation of a 13D Group (other than a 13D Group consisting only of the Investor and its Affiliates) with respect to any Equity Securities or equity securities of any Significant Subsidiary, or grant to any similar transaction involving the Company or (ii) Person any recapitalization, restructuring, liquidation or other extraordinary transaction proxy with respect to the Company, in each case without the prior written consent exercise of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC voting rights with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveShares; or
(ke) enter into discussionspublicly announce any intention, negotiations, arrangements plan or agreements arrangement or finance (or arrange financing for) any Person in connection with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Investor Rights Agreement (Western Digital Corp), Investor Rights Agreement (Hitachi LTD)
Standstill. During Each Seller agrees that, prior to 11:59 p.m., Pacific time, on the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) one year anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementit will not:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsShares;
(b) make a tender, exchange submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other public offer business for consideration, or nominate any candidate for election to acquire Common Stock and/or Common Stock Equivalentsthe Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Company Shares or deposit any Company Shares in a voting trust or similar arrangement or subject any Company Shares to any voting agreement or pooling arrangement, other than with other Sellers or one or more of their Affiliates;
(d) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Company Shares, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any Company Shares with respect to any matter, including any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the SEC nominees of the Board at any stockholder meeting;
(e) call, seek to call, or request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries; (ii) any transfer or acquisition of Company Shares or other securities of the Company or any securities of any Affiliate of the Company; (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries; or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”);
(g) publicly disclose, or cause or facilitate the public disclosure (including the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of this Section 4.1;
(h) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the Board foregoing; or
(j) take or cause or induce or assist others to take any action inconsistent with any of the Company foregoing; provided, that, notwithstanding the foregoing, with respect to NRC Management the foregoing covenants and agreements set forth in this Section 4.1 shall only be applicable to NRC Management’s actions on behalf of the Managed Account and nothing herein shall restrict or restrain (i) NRC QP or any other fund, investment vehicle or managed account over which NRC Management or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and may serve as investment manager or any other professional representatives), directly investment advisory client of NRC Management (an “Other Account”) from taking any of the actions or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or engaging in any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent4.1, restrict, encumber, or limit in any manner: (Aii) the Investor NRC Management or any of its Affiliates from making confidentialtaking any of the actions or engaging in any of the matters set forth in this Section 4.1 on behalf of any Other Account or (iii) restrict or restrain any investor or owner of BD SLV or the Managed Account (other than NRC Management, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (Bextent set forth above) the Investor Designee from performing its duties as a member taking any of the Board; actions or (C) the Investor or engaging in any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by matters set forth in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSection 4.1.
Appears in 2 contracts
Sources: Share Repurchase Agreement (Northern Right Capital Management, L.P.), Share Repurchase Agreement (Intevac Inc)
Standstill. During Each Investor agrees that, from the period (such period, date of this Agreement until the “Standstill Term”) commencing as expiration of the First Closing Date and continuing until the later Standstill Period, neither it nor any of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates or Family Members will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) Associates and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingFamily Members not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly, in any manner, acting alone or in concert with others, take any of the followingfollowing actions or advise, except as approvedrecommend, invited request, encourage, solicit, influence or waived by induce any other person to take any of the Company or the Boardfollowing actions, or as contemplated by this Agreementannounce any intention to take any of the following actions:
(a) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, or any notice of nomination or other than Permitted Purchases and purchases of Preemptive Right Sharesbusiness for consideration, or nominate any candidate for election to the Board;
(b) engage, directly or indirectly, acquire beneficial ownership in any “solicitation” (as defined in Rule 14a-1 of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent Regulation 14A) of ownership of an amount of securities of the Company proxies (or written consents) or otherwise become a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce or seek to advise advise, encourage or influence any Person, other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any voting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(c) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(d) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(fe) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the voting stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement or any securities of their respective Affiliates or Associates);
(f) deposit any shares of voting stock of the CompanyCompany in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board not in violation of the terms of this Agreement;
(h) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(i) request acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company; provided, however, nothing herein shall limit the ability of the Investors to disclose, publicly or otherwise, how it intends to vote with respect to any announced tender offer, exchange offer, merger, consolidation, business combination or other change-of-control transaction that is being submitted for the approval of shareholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(k) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i))3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(jl) make institute, solicit, assist or join any public announcement regardinglitigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(m) take any action that could require challenging the Company to make a public announcement regarding, a potential Business Combination validity or enforceability of any provisions of the matters set forth in clauses (a) through (i) abovethis Section 3; or
(kn) enter into any negotiations, discussions, negotiationsagreement, arrangements arrangement or agreements understanding with any Person relating to person concerning any of the foregoing actions referred (other than this Agreement) or encourage or solicit any person to in (a) through (i) above; providedundertake any of the foregoing activities. Notwithstanding the foregoing, however, that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prohibit or limit in any mannerrestrict the Investors from: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to communicating privately with the Board for a transaction involving a Business Combination following or the public announcement by Chief Executive Officer of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) the Investor Designee from performing its duties as a member communicating privately with stockholders of the Board; Company and others in a manner that does not otherwise violate this Section 3, or (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investor Investors or any of its Affiliates from exercising their respective rightsAffiliates or Associates, performing their respective obligations or otherwise consummating provided that a breach by Investor of this Agreement is not the transactions contemplated by cause of the applicable requirement. As used in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with :
(i) the terms hereof “Affiliate” and thereof.“Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include persons who become Affiliates or Associates of any person subsequent to the date of this Agreement;
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. During the period (such period18.1 Subject to Clause 18.2, the “Standstill Term”) commencing as each of the First Closing Date Sellers agrees and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateundertakes that, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Purchaser, from the date of this Agreement until Closing (a transaction described at which time the standstill provisions of the Relationship Agreement and the Standstill and Lock-Up Agreement shall come into force) or, if earlier, termination of this Agreement (in clauses accordance with its terms) it will not, and will procure that no member of its Group will:
(ia) and (ii) that would result acquire or offer to acquire, or knowingly cause or actively encourage or procure any other person to acquire or offer to acquire, any interest in a Change any shares or other securities of Control, is referred to the Purchaser as a “Business Combination”)result of which it or any other person including any member of its Group will or may acquire an interest in any shares or other securities of the Purchaser;
(hb) announce or make, or knowingly cause or procure any other person to announce or make on behalf of itself or any of any member of its Group or persons acting in concert with it or any member of its Group, an offer for the whole of the ordinary share capital of the Purchaser whether by tender offer or scheme of arrangement (under section 896 of the Companies Act) or otherwise (each being a General Offer) or (other than as required by the Code) announce that it or any member of its Group or any person acting in concert with it or any member of its Group is interested in acquiring the Purchaser;
(c) do any act as a result of which it or any member of its Group or any person with which it or any member of its Group is acting in concert may become obliged (under the Code or other applicable law or regulation) to announce or make a General Offer to acquire the Purchaser;
(d) act in concert with any Third Party other person in connection with any offer to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules acquire control of the SEC Purchaser to be made or announced by that other person or any member of its Group; or
(e) act in concert with any person with respect to the Company holding, voting or disposition of any shares or other securities of the CompanyPurchaser;
(if) request solicit, or propose make or participate in any solicitation of, or seek to persuade, shareholders of the Purchaser to vote in a particular manner at any meeting of the shareholders of the Purchaser, or requisition or join in requisitioning any general meeting of the Purchaser to consider or vote on a Board Control-Seeking Proposal;
(g) actively or publicly make any proposals for any merger, consolidation or share exchange involving shares or other securities of the Company Purchaser; or
(h) enter into any agreement or act in concert with any person in relation to any of the foregoing.
18.2 The restrictions in Clause 18.1 shall not:
(a) apply if a Seller or any member of its officersGroup announces an offer under Rule 2.7 of the Code to acquire the Purchaser, directorsor takes any other action which would require that Seller or any member of its Group to make an offer under Rule 9 of the Code, Affiliates employeesin each case if such offer is recommended by the directors of the Purchaser (and, attorneysfor the avoidance of doubt, accountants, financial advisors and other professional representatives), directly or indirectly, no Seller nor any amendment or waiver member of its Group will take any provision of this Section 2.1 (including this clause (i)such action unless it has first obtained such a recommendation);
(jb) make apply if a third party which is not acting in concert with either Seller or any public announcement regardingmember of their respective Groups makes, or take announces under Rule 2.7 of the Code, an offer to acquire the Purchaser’s issued ordinary share capital (whether such offer is recommended or not);
(c) apply to the acquisition by any action that could require the Company to make pension fund of a public announcement regarding, a potential Business Combination Seller or any member of its Group of shares or other securities in the Purchaser provided that the assets of the matters set forth in clauses (a) through (i) abovepension fund are managed under an agreement or arrangement with a third party which gives such third party absolute discretion regarding dealing, voting and acceptance decisions; or
(kd) enter into discussions, negotiations, arrangements or agreements with any Person relating apply to the foregoing actions referred to acquisition of any interest in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, shares or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member other securities of the Board; Purchaser by any connected fund manager or principal trader (C) as defined in the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCode).
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of the Entire Issued Share Capital of Ee Limited (Deutsche Telekom Ag), Agreement for the Sale and Purchase of Shares (Bt Group PLC)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date Period and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to unless otherwise approved by the Board pursuant to Section 5of Directors (other than the Series B Designees), each Holder will not, and (iii) the date on which the Investor (including SK ecoplant and SPV) and will cause each of its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingAffiliates not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, by joining a partnership, limited partnership, syndicate or other than Permitted Purchases and purchases 13D Group or otherwise, (A) Beneficial Ownership of Preemptive Right Sharesany Voting Securities, directly Derivative Securities or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of other securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer any rights to acquire Common Stock and/or Common Stock Equivalents;
(c) directly whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or indirectly, (i) seek to have called any meeting combination of the stockholders of the Company foregoing) any Voting Securities, Derivative Securities or propose any matter to be voted upon by the stockholders other securities of the Company, or other than (i) the acquisition of the shares of the Series B Stock pursuant to the Purchase Agreement, (ii) propose shares of Common Stock and other securities, if any, issuable upon the conversion of the Series B Stock, (iii) the acquisition of Voting Securities pursuant to Sections 4.2 and 4.3 hereof, (iv) the acquisition of Voting Securities and Derivative Securities as a result of any stock splits, stock dividends or nominate for election other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities or Derivative Securities generally, but only to the Board extent any person whose nomination has not been such securities are owned by a Holder, (v) in a transaction in which any Holder acquires an interest in an entity that owns shares of Voting Securities of the Company representing 2% or less of the Total Voting Power, or (vi) any acquisition of Voting Securities approved by a majority of the Directors (other than the Series B Designees) (clauses (i) through (vi) are referred to collectively as "Permitted Acquisitions") or (B) the Company or any of its Subsidiaries or all or substantially all of the assets of the Company or any of its Subsidiaries except pursuant to Section 4.2 hereof or as approved by a majority of the Directors (other than the Series B Designees);
(b) engage in any "solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of proxies or consents relating to the election of directors with respect to the Company, or become a "participant" in any "election contest" (within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than nominees for director who are to be elected by the Holders of Series B Stock in accordance with the Certificate of Designations;
(excluding c) induce or attempt to induce any other Person to initiate any stockholder proposal to seek election to or seek to place a representative on the Investor Designee, if anyBoard of Directors (except pursuant to the Certificate of Designations) or seek the removal of any member of the Board of Directors of the Company);
(d) directly in any manner, agree, attempt, seek or indirectlypropose to deposit any Voting Securities, encourage, accept Derivative Securities or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company or any rights to acquire (if such offer whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or proposal would, if consummated, result in a Change of Control any combination of the Companyforegoing) any Voting Securities, Derivative Securities or other securities of the Company in any voting trust or similar arrangement (other than any such offer voting trust or proposal is referred to as an “Acquisition Proposal”similar arrangement among two or more Holders);
(e) directly publicly announce any intention, plan or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under arrangement inconsistent with the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;foregoing; or
(f) deposit any securities form or join in the formation of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement 13D Group with respect to the voting of such securitiesany Voting Securities, including the granting of any proxy (other than pursuant to this Agreement)any such "group" consisting exclusively of Holders and any Affiliates of the Holders;
(g) propose except as provided in Section 4.2, finance (ior arrange financing for) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction Person in connection with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 3.1 shall prevent, restrict, encumber, or (i) limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member rights of the Board; or (C) the Investor or any Investors under each of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Certificate of Designations, and Registration Rights Agreement, (ii) prohibit any individual who is serving as a Director, solely in his or her capacity as a Director, from (x) exercising his or her fiduciary duties, (y) taking any action or making any statement at any meeting of the Preferred Distributor AgreementBoard of Directors or of any committee thereof, in each caseor (z) making any statement or disclosure required under federal securities Laws or other applicable Law, in accordance with (iii) restrict any disclosure or statements required to be made by any Investor under applicable Law, or (iv) limit the terms hereof and thereofrights of the Investors pursuant to Section 4.2 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Phillips Van Heusen Corp /De/), Investors' Rights Agreement (Phillips Van Heusen Corp /De/)
Standstill. During Without Buyer’s or Seller’s consent, as applicable, Seller and Buyer, respectively, shall not, and shall cause their respective Exchange Act Affiliates not to, for a period of two years from the period date of this Agreement: (such perioda) purchase or otherwise acquire, or offer, seek, propose, or agree to acquire, ownership (including beneficial ownership as defined in Rule 13d-3 under the “Standstill Term”Exchange Act) commencing as of the First Closing Date and continuing until the later of any (i) the second (2nd) anniversary securities of the Second Closing Dateother Party or any of its Exchange Act Affiliates, as applicable (a “Public Counterparty”), or (ii) direct or indirect rights or options to acquire any such securities described in Section 5.7(a)(i) or any securities convertible into any such securities described in Section 5.7(a)(i) (collectively, the date on which securities described in Section 5.7(a)(i) and Section 5.7(a)(ii) are “Securities”); (b) seek or propose, alone or in concert with others, to control or influence in any manner the Investor ceases to have management, the right to designate board of directors or the policies of the Public Counterparty, including a director to the Board proposal pursuant to Section 5, and Rule 14a-8; (iiic) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardmake, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesin any way participate, directly or indirectly, acquire beneficial ownership in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A the proxy rules under the Exchange Act)Act and the regulations thereunder) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of such securitiesany voting securities of a Public Counterparty; (d) make any proposal or any statement regarding any proposal, whether written or oral, to the board of directors of a Public Counterparty or any director or officer of a Public Counterparty or otherwise make any public announcement or proposal whatsoever with respect to any other transaction or proposed transaction between the Parties, any of a Public Counterparty’s security holders, or any of their respective Exchange Act Affiliates, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationacquisition, tender or exchange offer, purchase merger, sale of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativesecurities, or any similar transaction involving other business combination, unless (i) the Company Public Counterparty’s board of directors or its designated representatives have requested in advance the submission of such a proposal, (ii) such proposal is directed to the Public Counterparty’s board of directors or its designated representatives, and (iii) any recapitalizationpublic announcement with respect to such proposal is approved in advance by the Public Counterparty’s board of directors; or (e) providing financing (including guarantees), restructuringin whole or in part, liquidation or other extraordinary transaction to any Person with respect to the Company, in each case without the prior written consent of the Board (a transaction described matters in clauses (ia)-(d) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision above of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.7.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spruce Power Holding Corp), Asset Purchase Agreement (New Jersey Resources Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingPeriod, the Investor shall not, and shall cause its Affiliates (including SK ecoplant and the SPVcollectively, “Restricted Persons”) and its Subsidiaries shall not do any of the followingto, except as approveddirectly or indirectly, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases solicit proxies, designations or written consents of Preemptive Right shareholders, or conduct any binding or nonbinding referendum with respect to Company Shares, directly or indirectlyencourage or participate in any campaign to withhold proxies or votes for director nominees recommended by the Board, acquire beneficial ownership or make or in any way participate in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives “proxy” within the Investor meaning of Rule 14a-1 promulgated by the economic equivalent SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of ownership “solicitation”) to vote or withhold the vote of an amount any Company Shares with respect to any matter, or become a “participant” in any contested solicitation for the election of securities of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a “Derivative”), except, nothing participant” in this Section 2.1(a) shall prevent or prohibit support of the Investor from investing in a fund with respect to which recommendations of the Investor does not have or share decision-making authority over investment or divestment decisionsBoard;
(b) make (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board (other than as expressly contemplated by paragraphs 1(b)(i), 1(b)(v) and 2), (ii) seek, alone or in concert with others, the removal of any member of the Board, except as expressly set forth herein, or (iii) seek to call, request the call, join with any other stockholder in a tenderrequest to call or call, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsa special meeting of the Company’s stockholders;
(c) directly form, join, or indirectlyin any other way participate in, (ia “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) seek to have called any meeting of the stockholders Exchange Act with respect to the Company Shares, or deposit any Company Shares in a voting trust or similar arrangement, or subject any Company Shares to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any Company Shares (other than to a designated representative of the Company pursuant to a proxy or propose consent solicitation on behalf of the Board), other than solely with one or more Affiliates of Investor with respect to the Company Shares acquired in compliance with paragraph (e) below or to the extent such a group may be with the Company or any matter of its Affiliates (it being understood that the holding by persons or entities of Company Shares in accounts or through funds not managed or controlled by the Investor or any Investor Affiliate shall not give rise to a violation of this paragraph 6(c) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by the Investor or any of its Affiliates and, in their capacity as such, are or may be deemed to be voted upon by members of a “group” with the stockholders Investor within the meaning of Section 13(d)(3) of the Company, or (ii) propose or nominate for election Exchange Act with respect to the Board any person whose nomination has Common Shares; provided there does not been approved by a majority of exist as between such persons or entities, on the Board (excluding one hand, and the Investor Designeeor any of its Affiliates, if anyon the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this paragraph 6(c));
(d) directly make or indirectlybe the proponent of any nomination or stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise), encourageor encourage any nomination or stockholder proposal, accept or support a tender, exchange or other offer or proposal by at any other Person or group (an “Offeror”) for securities meeting of the Company stockholders or in connection with any action in lieu of a meeting (if such offer or proposal wouldother than as expressly contemplated by paragraphs 1(b)(i), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”1(b)(v) and 2);
(e) directly acquire, or indirectlyoffer, solicit proxies or consents or propose or seek or become agree to acquire, by purchase or otherwise, Economic Ownership of any Company Shares or a participant Synthetic Long Position with regard to Company Shares if, in any such case, immediately after taking such action, the Investor together with its Affiliates, would, in the aggregate, (i) Economically Own more than 30.0% of the then outstanding Company Shares or (ii) have a Total Net Long Position relating to a number of Company Shares greater than 30.0% of the then outstanding Company Shares;
(f) propose, offer or participate in (i) any effort to acquire the Company or any of its subsidiaries or any material assets or operations of the Company or any of its subsidiaries, (ii) any effort to engage in a solicitation transaction or enter into any agreement that would result in Economic Ownership by any person or entity or group (as such terms are defined in Regulation 14A Section 13(d)(3) of the Exchange Act) of more than 30% of the outstanding Company Shares at any time or outstanding voting power of the Company at any time, (iii) any tender offer, exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its subsidiaries, (iv) any effort with respect to share repurchases, dividends or self-tenders, other than as recommended by the Company, (v) any plan or proposal that would relate to any of the items listed in Item 4 of Schedule 13D promulgated under the Exchange ActAct (except as contemplated hereby), or seek to advise (vi) any recapitalization, restructuring, liquidation, disposition, dissolution or influence other extraordinary transaction involving the Company, any Personof its subsidiaries or any material portion of their businesses;
(g) 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 voting any security (other than a broad based market basket or index) or other Synthetic Short Position) that includes, relates to or derives any significant part of any its value from a decline in the market price or value of the securities of the Company;
(fh) deposit seek to advise, encourage, support or influence any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesvoting, including the granting giving or withholding of any proxy proxy, consent, or other authority with respect to the Voting Securities of the Company (other than pursuant to this Agreement);
(g) propose except that nothing herein shall restrict the Investor or its Affiliates from providing such advice, encouragement, support or influence (i) any merger, consolidation, business combination, tender or exchange offer, purchase of that is consistent with the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company recommendations on such matters or (ii) voting, giving or withholding of any recapitalizationproxy, restructuringconsent, liquidation or other extraordinary transaction authority on matters with respect to which the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result Investor is not required by Paragraph 4 to vote in a Change of Control, is referred to as a “Business Combination”specified manner);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request publicly disclose, or propose to cause or facilitate the Board public disclosure (including without limitation the filing of any document or report with the Company (SEC or any other governmental agency or any disclosure to any journalist, member of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly the media or indirectlysecurities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of paragraph 4 or waiver of paragraph 6 hereof, or otherwise (i) publicly seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Section 2.1 Agreement or (including this clause (i))ii) bring any action or otherwise act to contest the validity or enforceability of paragraph 4 or paragraph 6 hereof or publicly seek a release from the restrictions or obligations contained in paragraph 4 or paragraph 6;
(j) make or issue or cause to be made or issued any public disclosure, announcement regardingor statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations on behalf of the Board), or (ii) in support of any matter described in paragraph (b) or paragraph (d) above;
(k) make any request for stockholder list materials of the Company under Section 220(b) of the Delaware General Corporation Law or otherwise; or
(l) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to the foregoing, or advise, assist, encourage, support or seek to persuade others to take any action that could require with respect to any of the foregoing, or act in concert with others or as part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 6 shall prohibit or restrict (x) any Investor Nominee acting in his or her capacity as a director of the Company or member of a Committee of the Board from engaging in private discussions with the Board, any Committee, any director or member of the Company management or from requesting or receiving access to make any documents or information to which a public announcement regarding, director or member of a potential Business Combination Committee is entitled under applicable law or (y) the Investor or its Representatives from (i) communicating privately with the Board or any of the matters set forth Company’s officers regarding any matter in clauses a manner that does not otherwise violate this paragraph 6, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications (a) through (i) above; orincluding, without limitation, in any document or report filed with the SEC),
(kii) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained in this Section 2.1 shall prevent, restrict, encumberhas, or limit in any manner: (A) may have, jurisdiction over the Investor or any of its Affiliates from making confidentialin a manner that does not otherwise violate this paragraph 6 or (iii) communicating with its investors. Except as expressly provided in paragraph 4, nonpublic proposals each of the Investor and its Affiliates shall be entitled to vote Company Shares beneficially owned by it as it determines in its sole discretion and or tender Company Shares in any tender offer or exchange offer. Notwithstanding anything to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by contrary in this Agreement, nothing in this paragraph 6 shall limit the Purchase Agreement, Joint Venture Agreement, exercise in good faith by an Investor Nominee of such person’s duties or rights in such person’s capacity as a director of the Preferred Distributor Agreement, in each case, Company in accordance with the terms hereof and thereoftheir fiduciary duties.
Appears in 2 contracts
Sources: Board Appointment Agreement, Board Appointment Agreement (National CineMedia, Inc.)
Standstill. During Investor hereby agrees that, without the period (such period, the “Standstill Term”) commencing as prior approval of the First Closing Date and continuing until Board (as defined in the later of (i) the second (2nd) anniversary of the Second Closing DatePurchase Agreement), (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do and shall not permit or cause any Affiliate (as defined in the Purchase Agreement) or Representative of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementInvestor to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacting alone or with others, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase, merger, business combination or in any other manner, any voting securities or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company if after such acquisition Investor, together with its Affiliates, would own more than 10% of the outstanding capital stock of the Company or voting power of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person; provided that any investment by Investor or an Affiliate of Investor in third-party mutual funds or other similar passive investment vehicles that hold interests in securities of the Company or any of its Affiliates shall not be taken into account for the purpose of this subparagraph (a “Derivative”a), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tenderenter into any voting agreements, exchange trusts or similar arrangements with respect to voting securities of the Company other public offer to acquire Common Stock and/or Common Stock Equivalentsthan as set forth herein;
(c) make, or in any way participate, directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the rules promulgated by the Securities and Exchange ActCommission (the “Commission”)), or seek to advise or influence any Person, person or entity with respect to the voting by any third party of any voting securities of the Company;
(fd) deposit make any securities of the Company in a voting trust public announcement, directly or subject any securities of the Company to any arrangement or agreement indirectly, with respect to the voting to, or submit a proposal for, or offer of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) (a “13D Group”) of the SEC Securities Exchange Act of 1934, as amended (the “Exchange Act”) , in connection with respect any of the foregoing;
(f) act, alone or in concert with others, to seek to control, advise, change or influence the Company management, Board, governing instruments, policies or any securities affairs of the Company;
(ig) request disclose any intention, plan or propose to arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))foregoing;
(jh) make have any public announcement regardingdiscussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ih) above; or
(kj) enter into discussions, negotiations, arrangements or agreements with any Person relating to request the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates from making confidentialagents or Representatives, nonpublic proposals directly or indirectly, in any public manner, to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member amend or waive any of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing provisions.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement, Common Stock Purchase Agreement (Denali Therapeutics Inc.)
Standstill. (a) During the period (such periodStandstill Period, unless otherwise approved by the “Standstill Term”) commencing as of the First Closing Date Board or by ClearSign, each Investor Party shall not, and continuing until the later of shall cause its Representatives not to, directly or indirectly:
(i) acquire, offer or seek to acquire, agree to acquire or acquire rights or options to acquire, whether by purchase, tender or exchange offer, through the second acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, (2ndA) anniversary any securities of ClearSign, any rights decoupled from the underlying securities of ClearSign, or any derivative securities, contracts or instruments in any way related to the price of shares of Common Stock, in each case, if such acquisition, offer or seeking to acquire, agreement or transaction would result in any Investor Party having beneficial ownership of more than 3.5% of the Second Closing DateCommon Stock or Voting Securities outstanding at such time, including, without limitation, through the exercise of, or acquisition of, derivative securities or (B) any assets or liabilities of ClearSign;
(ii) the date on which the Investor ceases make any public announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to have the right a material amount of assets or securities of ClearSign or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to designate ClearSign or any of its subsidiaries or (C) any form of tender or exchange offer for Voting Securities, whether or not such transaction involves a director to the Board pursuant to Section 5, and Change of Control;
(iii) in respect of those matters enumerated in Section 3 hereof, other than as may be required by reason of employment in a broker-dealer in the date on which ordinary course, engage in, or assist in the engagement in (including, without limitation, engagement by use of or in coordination with a universal proxy card), any solicitation of proxies or written consents to vote any Voting Securities, communicate with stockholders of ClearSign pursuant to Rule 14a-1(l)(2)(iv) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or from the holders of, any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of ClearSign (including, without limitation, by initiating, encouraging or participating in any “withhold” or similar campaign);
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any Voting Securities or any rights decoupled from the underlying securities held by any Investor Party to any person who is not (including SK ecoplant and SPVA) and a Party to this Agreement, (B) a member of the Board, (C) an officer of ClearSign or (D) an Affiliate or Associate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) with a known history of activism or known plans to engage in activism or that would knowingly (after due inquiry) result in such Third Party, collectively with its Subsidiaries beneficially own less than five percent (5.0%) Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock then issued and outstandingoutstanding at such time;
(v) take any public action in support of or make any public proposal or request that constitutes or would result in: (A) advising, controlling, changing, replacing or influencing any director or member of management of ClearSign, including, without limitation, any plans or proposals, and/or consenting to the Investor (including SK ecoplant and calling of any special meeting of stockholders to effect such plans or proposals, to change the SPV) and its Subsidiaries shall not do number or term of directors or to fill any of vacancies on the followingBoard, except as approvedset forth in this Agreement, invited (B) any material change in the capitalization, stock repurchase programs and practices or waived by dividend policy of ClearSign, (C) any other material change in ClearSign’s management, business or corporate structure, (D) seeking to have ClearSign waive or make amendments or modifications to the Company Certificate of Incorporation, the Bylaws or the BoardPolicy Regarding Stockholder Candidates for Nomination (collectively, the “Governing Materials”) or any other actions that may impede or facilitate the acquisition of control of ClearSign by any person, (E) causing a class of securities of ClearSign to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of ClearSign to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vi) act by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence ClearSign’s stockholders, management or the Board with respect to ClearSign’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions or strategy or to obtain representation of the Board or seek the removal of any director in any manner, except as contemplated expressly permitted by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bvii) make call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a tendermeeting is permitted by the Governing Materials, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsincluding, without limitation, a “town hall meeting”;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(fviii) deposit any securities of the Company Voting Securities in a any voting trust or subject any securities of the Company Voting Securities to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy Voting Securities (other than pursuant to (A) any such voting trust, arrangement or agreement solely between the Investor Parties that is otherwise in accordance with this AgreementAgreement or (B) customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(gix) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeseek, or knowingly encourage or advise any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) removal of directors with respect to ClearSign or seek, or knowingly encourage or take any recapitalization, restructuring, liquidation or other extraordinary transaction action with respect to the Company, in each case without the prior written consent election or removal of the Board (a transaction described in clauses (i) and (ii) that would result in a Change any directors of Control, is referred to as a “Business Combination”)ClearSign;
(hx) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any other way participate in a any “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveVoting Securities; provided, however, that nothing herein shall limit the ability of an Affiliate of any Investor Party to join in a “group” with any other Investor Party or Affiliate thereof comprising such Investor Party following the execution of this Agreement, so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that such Investor Party has formed a group with such Affiliate;
(xi) demand a copy of ClearSign’s list of stockholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of the State of Delaware providing for stockholder access to books and records (including, without limitation, lists of stockholders) of ClearSign;
(xii) make any request or submit any proposal to amend or waive the terms of this Section 6 other than through non-public communications with ClearSign that would not be reasonably likely to trigger public disclosure obligations for any Party;
(xiii) comment publicly about or disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to any transactions involving ClearSign, any director or member of management, policies, strategy, operations, financial results or affairs, any of its securities or assets, or this Agreement that is inconsistent with the provisions of this Agreement; or
(xiv) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action that the Investor Parties are prohibited from taking pursuant to this Section 6, or advise, assist, encourage or seek to persuade any person to take any action or make any statement with respect to any such action or otherwise take or cause any action or make any statement inconsistent with any of the foregoing.
(b) Notwithstanding anything to the contrary contained in this Section 2.1 6, each Investor Party shall prevent, restrict, encumber, not be prohibited or limit in any mannerrestricted from: (A) communicating privately with members of the Investor Board or senior officers of ClearSign regarding any matter in a manner consistent with communications that may be reasonably made by all stockholders of ClearSign, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Party or their respective Affiliates or any Third Party, subject in any case to any confidentiality obligations to ClearSign of its Affiliates from making confidentialany such director or officer and applicable law, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationrules or regulations; (B) the taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over such Investor Designee from performing Party; (C) generally fulfilling its duties obligations to its clients in its role as a member broker-dealer or an employee of a broker-dealer, provided, that a breach by any Investor Party of this Agreement is not the cause of the Boardapplicable requirement; or (CD) privately communicating with stockholders of ClearSign and others in a manner that does not otherwise violate this Agreement or applicable law, so long as such actions do not create a public disclosure obligation for such Investor Party or ClearSign and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with such Investor Party’s normal practices in the circumstances. The provisions of this Section 6 shall not limit in any respect the actions of any director of ClearSign in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to ClearSign and its stockholders and the Company Policies (it being understood and agreed that the Investor Parties shall not take any actions to indirectly violate any provision of this Section 6). The provisions of this Section 6 shall also not prevent the Investor Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 3 hereof).
(c) During the Standstill Period, each Investor Party shall refrain from taking any actions which could have the effect of encouraging, influencing or assisting any of its Affiliates from exercising their respective rightsThird Party to engage in actions which, performing their respective obligations or otherwise consummating the transactions contemplated if taken by any Investor Party, would violate this Agreement, except as may be required by reason of employment in a broker-dealer in the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofordinary course.
Appears in 2 contracts
Sources: Cooperation Agreement (ClearSign Technologies Corp), Cooperation Agreement (ClearSign Technologies Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership in excess of 15% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this excluding the acquisition of equity-based compensation pursuant to Section 2.1(a) shall prevent 13 hereof and the exercise of any options or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decisionconversion of any convertible securities comprising such equity-making authority over investment or divestment decisionsbased compensation;
(b) make a tender, exchange submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companybusiness for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved or oppose the directors nominated by a majority of the Board (excluding the Investor Designeeprovided, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities that such nominees were not nominated in contravention of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or ▇▇▇▇▇▇ or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(e) call or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇ to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, ▇▇▇▇▇▇ or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request or propose to the Board or the Company (engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make enter into any public announcement regardingarrangements, understandings or agreements (whether written or oral) with, or take advise, finance, assist or encourage any action other person that could require the Company engages, or offers or proposes to make a public announcement regardingengage, a potential Business Combination or in any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(k) enter into discussions, negotiations, arrangements take or agreements cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit ▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Fuel Systems Solutions, Inc.), Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. During the period commencing with the Effective Date and ending on the third anniversary of the Effective Date (such period, the “Standstill TermPeriod”) commencing as of ), the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive will not, and (iii) the date on which the Investor (including SK ecoplant will cause each of his Affiliates and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner, alone or in concert with others (in each case, except as approved by a resolution of the Board):
(a) acquire ownership (beneficial ownership or otherwise) of more than 19 million shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (together with his Affiliates and Associates, in the Investor aggregate during the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(aStandstill Period) shall prevent or prohibit the Investor from investing in a fund with respect rights or options to which the Investor does not have or share decision-making authority over investment or divestment decisionsacquire such ownership;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board effect any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeetender or exchange offer, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Company or its subsidiaries;
(a transaction described in clauses c) (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly make or indirectly, form, join or participate in any way participate in a “partnership, limited partnership, syndicate, solicitation” (as defined under the Exchange Act) of proxies or other group” as such terms are used in the rules of the SEC consents with respect to the Company election or removal of directors or any securities other proposal (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation); (ii) seek or knowingly encourage election to or representation on the Board, or nominate or recommend the nomination of the Company;
(i) request or propose any candidate to the Board Board, or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver removal of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (Ciii) make any stockholder proposal;
(d) publicly disclose (whether via social media platform or otherwise) any intention, plan or arrangement inconsistent with the Investor foregoing; or
(e) knowingly encourage or assist any other Person in undertaking any of its Affiliates from exercising their respective rightsthe foregoing. In addition, performing their respective obligations or otherwise consummating during the transactions contemplated by this AgreementStandstill Period, the Purchase AgreementExecutive agrees that he will, Joint Venture Agreementand will cause each of his Affiliates and Associates to, appear in person or by proxy at each meeting of the Preferred Distributor Agreement, Company’s stockholders and vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) at such meeting (a) in each case, in accordance with favor of the terms hereof slate of directors recommended by the Board and thereof(b) against the election of any nominee for director not recommended and nominated by the Board for election at such meeting.
Appears in 2 contracts
Sources: Separation Agreement (Nikola Corp), Severance Agreement
Standstill. During the period (such perioda) Sherborne agrees (on behalf of itself, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) Sherborne Designee and its Subsidiaries beneficially own less than five percent affiliates) that, during the Covered Period (5.0%) of the shares of Common Stock then issued and outstandingas defined below), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived unless specifically requested in writing by the Company or a majority of the Board, it shall not, and shall cause each of the members of the Sherborne Group (including the Sherborne Designee) not to, directly or as contemplated by this Agreementindirectly (including, without limitation, through its advisors, agents, representatives or third parties), in any manner, alone or in concert with others:
(ai) other than Permitted Purchases and purchases of Preemptive Right Shares(A) engage in, directly or indirectly, acquire beneficial ownership any “solicitation” of Common Stock and/or Common Stock Equivalents and/or proxies (as such term is used in the proxy rules promulgated under the Exchange Act) or consents to vote, or seek to advise, knowingly encourage or knowingly influence any instrument that gives person with respect to the Investor the economic equivalent voting of ownership of an amount of any securities of the Company including for the election of individuals to the Board or stockholder proposals, (B) become a “Derivative”), except, nothing participant” in this Section 2.1(a) shall prevent or prohibit any contested “solicitation” for the Investor from investing in a fund election of directors with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A or used under the Exchange Act), other than a “solicitation” or seek acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting, (C) make or be the proponent of any stockholder proposal (pursuant to advise Rule 14a-8 under the Exchange Act or influence any Personotherwise), (D) grant a proxy with respect to voting of its Common Stock to any securities person not a party to this Agreement, director or officer of the Company, a member of the Sherborne Group or a Sherborne Representative (as defined below) (a “Third Party”) or (E) disclose publicly or to any Third Party its voting intentions or votes as to matters submitted to a stockholder vote during the Covered Period, except as to this clause (E), to the extent legally required, as to its vote on any proposal with respect to an Extraordinary Transaction;
(fii) (A) form, join, knowingly encourage, knowingly influence or act in concert with in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not members of the Sherborne Group with respect to the Company or its securities or (B) agree to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in a any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesthereof, including the granting of any proxy (other than pursuant to except as expressly set forth in this Agreement);
(giii) acquire, offer or propose (i) any mergerto acquire, consolidationor agree to acquire, business combinationdirectly or indirectly, whether by purchase, tender or exchange offer, purchase 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 Company’s assets Exchange Act), through swap or businesseshedging transactions or otherwise, purchase of any securities of the Company or any Derivativerights decoupled from the underlying securities that would result in the Sherborne Group (together with the members of the Sherborne Group) owning, controlling or otherwise having any beneficial or other ownership interest in more than 20.0% in the aggregate of the voting power of the stock of the Company or 20.0% of an economic position in the Company at such time (such percentage, the “Ownership Limit”); provided, however, that nothing herein will require securities to be sold to the extent the members of the Sherborne Group, collectively, exceed the Ownership Limit under this paragraph as the result of a share repurchase that reduces the number of outstanding shares of Common Stock;
(iv) except in a transaction approved by the Board or an open market broker sale transaction, sell, offer or agree to sell, 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 Sherborne Group to any Third Party that would result in such Third Party, together with its Affiliates and Associates, to your knowledge after reasonable inquiry owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate 5% or more of the shares of Common Stock outstanding at such time;
(v) except in a transaction approved by the Board or an open market broker sale transaction, sell, transfer, assign or convey, directly or indirectly, any securities of the Company to any person who to your knowledge after reasonable inquiry has previously initiated or participated in a proxy contest or other nomination or proposal campaign with respect to any public company (including the Company);
(vi) sell, transfer, assign or convey, directly or indirectly, any rights decoupled from the underlying securities held by any member of the Sherborne Group to any person;
(vii) make or submit, seek to make or submit, cause or participate in, or in any similar way knowingly assist or knowingly facilitate any other person to make or submit or seek to make or submit to the Company any offer or proposal for any tender or exchange offer, merger, consolidation, acquisition, business combination, recapitalization, reorganization, sale or acquisition of assets, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public (or reasonably expected to become public) statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude Sherborne or any member of the Sherborne Group 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) (A) call or seek to call any meeting of stockholders, including by written consent, (B) seek representation on the Board, except as set forth herein, (C) seek the removal or election of any member of the Board or management, other than in accordance with any recommendation of the Board, (D) solicit consents from stockholders or otherwise act or seek for stockholders to act by written consent, other than in accordance with any recommendation of the Board, (E) conduct a referendum of stockholders, (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise; or (G) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing clause (G) shall not prevent Sherborne or any of the members of the Sherborne Group from (i) bringing litigation against the Company to enforce any provision of this Agreement, (ii) making counterclaims with respect to any recapitalizationproceeding initiated by, restructuringor on behalf of, liquidation the Company or its Affiliates against Sherborne or any of the members of the Sherborne Group in connection with this Agreement, (iii) exercising statutory appraisal rights or (iv) responding to or complying with validly issued legal process;
(x) make any proposal or request with respect to: (A) any change in the Board, including the number or term of directors or the filling of any vacancies on the Board other extraordinary transaction than as provided under Section 1 of this Agreement, (B) any change in the capitalization or dividend policy of the Company, (C) any change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Amended and Restated Certificate of Incorporation or Second Amended and Restated 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;
(xi) 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, in each case without its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the prior written consent provisions of this Agreement;
(xii) make any public (or reasonably expected to become public) disclosure, announcement or statement to take any of the Board foregoing actions or initiate or 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;
(a transaction described xiii) other than with respect to the Sherborne Designee as not prohibited under (and in clauses accordance with) the Company Policies, initiate discussions with any employee at the Company other than the Chief Executive Officer, the Chief Financial Officer and the Chief Legal Officer as set forth in the proviso set forth below regarding permitted private communications;
(ixiv) enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, including, without limitation, those related to pecuniary matters, compensation, consulting services, nomination obligations to act for the benefit of or report to the Sherborne Group or otherwise containing any restrictions or requirements on any such individual of any nature, featuring any voting or action commitments as to any matter or otherwise relating, directly or indirectly, to the Company, such individual’s relationship or potential relationship with the Company or the Sherborne Group’s investment or involvement in the Company, other than ordinary course agreements between members of the Sherborne Group and their investors (ii) that would result in a Change of Controlcollectively, is referred to as a “Business CombinationArrangements”);
(hxv) act in concert enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (that Sherborne or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesthe members of the Sherborne Group are prohibited from taking pursuant to this Section 2(a); or
(xvi) request, directly or indirectly, any amendment or waiver of any provision of the foregoing; provided, that the restrictions in this Section 2.1 2(a) shall not be deemed to prohibit the Sherborne Group (including this clause (i));or the Sherborne Designee) from communicating privately with the Company’s Chief Executive Officer, Chief Financial Officer, Chief Legal Officer, the Chair of the Board, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(jb) make any public announcement regardingDuring the Covered Period, Sherborne shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or by any of the matters set forth members of the Sherborne Group, to be present for quorum purposes and to be voted, at the Company’s annual and special meetings of stockholders and at any adjournments or postponements thereof, and vote in clauses favor of all directors nominated by the Board for election at any such meeting (a) through (i) above; or
(k) enter into discussionsincluding the Sherborne Designee, negotiationsas applicable), arrangements or agreements against any directors not nominated and recommended for election by the Board and in accordance with the Board’s recommendations with respect to any Person relating to proposals that may be the foregoing actions referred to in (a) through (i) abovesubject of stockholder action at such meeting; provided, however, that nothing contained Sherborne and any of the members of the Sherborne Group shall be permitted to vote in their sole discretion on any proposal with respect to an Extraordinary Transaction.
(c) Nothing in this Section 2.1 Agreement shall prevent, restrict, encumber, or be deemed to limit the exercise in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement good faith by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Sherborne Designee from performing its of such person’s fiduciary duties solely in such person’s capacity as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Nomination and Cooperation Agreement (Navient Corp), Nomination and Cooperation Agreement (Sherborne Investors LP)
Standstill. During Each ADAR1 Party agrees that during the period commencing on the Effective Date and ending immediately following the final certification of the voting results for the 2028 Annual Meeting of Stockholders of the Company (such period, the “Standstill TermPeriod”) commencing as ), neither it nor any of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner, acting alone or in concert with others, take any of the following actions without the prior written consent (email being sufficient) of the Company or its Board of Directors (as defined below):
(a) acquire, offer or propose to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of capital stock of the Company generally on a pro rata basis), directly or indirectly, by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or maintaining a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), through swap or hedging transactions or otherwise, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities capital stock of the Company (a “Derivative”)or any voting rights decoupled from the underlying voting securities that would result in the ADAR1 Parties and their Affiliates owning, exceptcontrolling or otherwise having any beneficial or other ownership interest of, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate, more than 4.9% of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock outstanding at such time;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
than in accordance with the recommendations of the Company’s Board of Directors (c) directly or indirectlythe “Board of Directors”), (i) seek make, submit, initiate, encourage or participate in (or provide notice of, or publicly disclose, an intention to have called do any meeting of the stockholders of the Company or propose foregoing) any matter to be voted upon by the stockholders of the Companyproposal with respect to, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeengage, if any);
(d) directly or indirectly, encouragein any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose consent revocations or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) with respect to: (A) any change in the composition, number or term of directors serving on the Board of Directors, the filling of any vacancies on the Board of Directors, the nomination or recommendation for nomination of a person for election at any Stockholder Meeting (as defined in Section 5.14) at which the Company’s directors are to be elected, or seek any election contest or removal contest with respect to advise the Company’s directors, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, (D) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, (E) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, (F) any stockholder proposal pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or bringing any other business at or before any Stockholder Meeting, or (G) any “withhold” or similar campaign with respect to any proposal for consideration or business brought at or before any Stockholder Meeting;
(c) recommend, request, induce, encourage or influence any Person, other person with respect to (i) pursuing any change in, or attempting to influence, the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, or (ii) the giving or withholding of any proxy, consent or other authority to vote, or in conducting any type of referendum with respect to the Company, whether binding or non-binding (other than such encouragement, advice or influence that is consistent with the Board of Directors’ recommendation in connection with such matter), provided that nothing shall limit the giving by the ADAR1 Parties or their Affiliates of a proxy or consent in respect of any matter so long as the voting of any securities the shares of capital stock of the Company owned thereby are voted in accordance with the terms of this Agreement where applicable;
(d) call, or request the calling of, a special meeting of the Company’s stockholders, or any other Stockholder Meeting (or the setting of a record date therefor), including any “town hall” meeting;
(e) make a request for or demand an inspection of a list of the Company’s stockholders or any books and records of the Company or any of its subsidiaries under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(f) deposit institute, solicit, assist or join any securities litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than to (x) enforce the provisions of this Agreement or the Confidentiality Agreement (as defined in Section 4.5(e) or (y) any counterclaims with respect to any proceeding initiated by or on behalf of the Company in a voting trust or subject any securities violation of this Agreement (and the Company agrees that this Section 4.2(f) (including the exceptions thereto) shall apply mutatis mutandis during the Standstill Period to any arrangement or agreement the Company and its directors, officers, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this AgreementADAR1 Parties);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in, maintain or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other ‘group’” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the capital stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement or Affiliates thereof);
(h) deposit any shares of capital stock of the Company in a voting trust or similar arrangement or subject any shares of capital stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the ADAR1 Parties or their respective Affiliates and otherwise in accordance with this Agreement;
(i) acquire or agree to acquire, offer, seek or propose to acquire, or cause to be acquired or in any way assist or facilitate any other person to acquire or agree to acquire, offer, seek or propose to acquire, ownership (including beneficial ownership) of any of the assets or businesses of the Company or any of its subsidiaries or any rights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board of Directors, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to a merger, consolidation, acquisition of control, tender or exchange offer, purchase, sale, license or other transfer of assets or securities, any other business combination, dissolution, liquidation, reorganization, spin-off or spin-out, share repurchase or similar transaction involving the Company, its subsidiaries or its business;
(k) sell, assign, or otherwise transfer or dispose of its shares of capital stock of the Company, or any rights decoupled from such shares, beneficially owned by them other than in open market sale transactions and block trade brokered sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any person that, to the ADAR1 Parties’ knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), (i) would result in such person, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s outstanding capital stock at such time or would increase the beneficial ownership interest of any person who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s outstanding capital stock at such time, (ii) is listed on SharkWatch50 or has otherwise directly or indirectly run or publicly disclosed an intention to run a proxy contest or publicly submitted stockholder nominations or proposals with respect to another publicly-traded company within the last five years or (iii) is as of the Effective Date a Schedule 13D filer with respect to the Company;
(l) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive any provision of this Agreement;
(m) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than in connection with a broad-based market basket or index) that relates to or derives any part of its value from any decline in the market price or value of any securities of the Company, that, in each case, would result in the Seller Affiliates having, in the aggregate, a total short position that exceeds 2.0% of the shares of Common Stock outstanding at such time;
(in) request publicly take any action challenging the validity or propose enforceability of any provision of this Agreement; or
(o) participate in any negotiations, discussions, agreements, arrangements or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities or otherwise take or cause any action inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the ADAR1 Parties from (x) communicating confidentially with the Chair of the Board of Directors or the Chief Executive Officer of the Company (or any other individuals in the Company authorized by such individuals) regarding any matter, so long as such communications are not intended to, and could not reasonably be expected to, require any public disclosure of its officerssuch communications, (y) communicating confidentially with the ADAR1 Parties’ Affiliates and the managing members, principals, partners (other than a partner who is solely a limited partner), directors, Affiliates employeesofficers, attorneysgeneral partners, accountants, financial advisors employees and other professional representatives), directly or indirectly, any amendment or waiver attorneys of any provision such party and of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingits Affiliates, or take (z) tendering shares, receiving payment for shares or otherwise participating in any action transaction that could require is consummated following the Company to make Closing involving a public announcement regarding, a potential Business Combination or any third party approved by the Board of Directors on the same basis as other stockholders of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ADAR1 Capital Management, LLC), Stock Purchase Agreement (Keros Therapeutics, Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesExcept as otherwise expressly provided in this Agreement (including this Section 3.01, directly Section 2.02 or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Section 3.03) or as specifically approved by a majority of the Company Independent Directors (a “Derivative”so long as such approval was not obtained by Ciba in violation of this Agreement), exceptneither Ciba nor any of Ciba's controlled affiliates shall, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek by purchase or otherwise, acquire, agree to have called acquire or offer to acquire Beneficial Ownership of any meeting Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities (including any voting trust certificates representing such securities), (ii) enter, propose to enter into, solicit or support any merger or business combination or similar transaction involving Hexcel or any of its Subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the stockholders business or assets of Hexcel or any of its Subsidiaries (except (x) for purchases or acquisitions in the ordinary course of business and (y) for proposals to purchase or acquire a nonmaterial portion of the Company assets of Hexcel or any of its Subsidiaries that are not required to be publicly disclosed), (iii) initiate or propose any matter to be voted upon by securityholder proposal without the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority approval of the Board (excluding the Investor Designeegranted in accordance with this Agreement or make, if any);
(d) directly or indirectlyin any way participate in, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities "solicitation" of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation "proxies" (as such terms are defined used in Regulation 14A the proxy rules promulgated by the SEC under the Exchange Act)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of, any Voting Securities or request or take any action to obtain any list of securityholders for such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction purposes with respect to any matter other than those upon which Ciba and the CompanyCiba Entities may vote in their sole discretion under Section 2.07 (or, as to such matters, solicit any Person in each case without a manner that would require the prior written consent filing of a proxy statement under Regulation 14A of the Board Exchange Act), (a transaction described in clauses (iiv) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipgroup (other than a group consisting solely of Ciba and its affiliates) formed for the purpose of acquiring, limited partnershipholding, syndicate, voting or disposing of or taking any other group” as such terms are used in the rules of the SEC action with respect to the Company or any securities Voting Securities that would be required under Section 13(d) of the Company;
Exchange Act to file a Statement on Schedule 13D with respect to such Voting Securities, (iv) request deposit any Voting Securities in a voting trust or propose to enter into any voting agreement or arrangement with respect thereto (other than this Agreement), (vi) seek representation on the Board, the removal of any directors from the Board or a change in the Company size or composition of the Board, (vii) make any request to amend or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 3.01, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including this clause (i));
(jany such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) make any public announcement regarding, or take any action that could would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the Company to make a public announcement regarding, a potential Business Combination validity or any enforceability of the matters set forth in clauses (a) through (i) above; foregoing or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Governance Agreement (Ciba Geigy LTD), Governance Agreement (Ciba Geigy Corp)
Standstill. During From the period date of this Agreement until the first-year anniversary hereof (such period, the “Standstill TermRestricted Period”), with respect to the Company, each Blackwells Party shall not, and shall cause its Affiliates and their respective principals, directors, members, general partners, officers, employees, consultants and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the U.S. Securities and Exchange Commission (the “SEC”), but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), involving the Company, of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage, advise or influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, (i) with respect to the voting or the giving or withholding of any proxy, consent or other authority to vote involving the Company or the taking of any other action with respect to such Person’s Voting Securities or (ii) in conducting any type of referendum, binding or non-binding, involving the Company (in each case, other than Permitted Purchases such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(c) form, join or participate in any way in any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with other Affiliates of Blackwells with respect to Voting Securities now or hereafter owned by them;
(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company (other than solely through the exercise of Voting Securities held by such Blackwells Party prior to the date of this Agreement and purchases (i) identified by such Blackwells Party in its public filings with the SEC prior to the date of Preemptive Right Sharesthis Agreement or (ii) identified by such Blackwells Party in its public filings made with the SEC on the date of this Agreement, to the extent such Voting Securities were specified in drafts of such filings provided by such Blackwells Party to the Company on the date of this Agreement prior to entry into this Agreement);
(e) sell, offer or agree to sell all or substantially all voting rights decoupled from the underlying Voting Securities held by any Blackwells Party or any of its Affiliates, directly or indirectly, acquire beneficial ownership through swap or hedging transactions or otherwise;
(f) make, or in any way participate with any other Person (other than (i) the voting of Common Stock and/or Common Stock Equivalents and/or Voting Securities held by any instrument that gives Blackwells Party prior to the Investor date of this Agreement and identified by such Blackwells Party in its public filings with the economic equivalent SEC prior to the date of ownership this Agreement and (ii) the receipt of an amount consideration on the same terms as other holders of securities of the Company (a “Derivative”securities), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyin any, or (ii) propose or nominate for election any proposal that would reasonably be expected to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeresult in any, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldoffer, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender recapitalization, restructuring, liquidation, dissolution or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation its subsidiaries or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly its or indirectly, form, join their securities or in any way participate in a “partnership, limited partnership, syndicate, assets; or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)make, directly or indirectly, any amendment proposal, either alone or waiver in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any such transaction;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of Blackwells, with respect to Voting Securities now or hereafter owned by them;
(h) (A) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, (B) seek, alone or in concert with others, the removal of any provision member of this Section 2.1 the Board, or (including this clause C) conduct a referendum of shareholders;
(i));) make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration by the Company’s shareholders;
(j) make any public announcement regardingrequest for stock list materials or other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to books and records;
(k) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any action of the actions expressly prohibited by this paragraph 4; provided, however, that could require for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation against the Company to make enforce the provisions of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a public announcement regardingRestricted Person, or bringing a responsive independent action against the Company should counterclaims be deemed insufficient to defend such Blackwells Party’s interests, (iii) responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (each, a potential Business Combination “Legal Requirement”) in connection with any legal proceeding (the “Legal Proceeding”) if such Legal Proceeding has not been initiated by, or on behalf of, or at the suggestion of, the Blackwells Parties; provided, further, that in the event any of the Blackwells Parties or any of the matters set forth in clauses Blackwells Representatives (aas such term is defined below) through (i) above; or
(k) enter into discussionsreceives any Legal Requirement, negotiations, arrangements such Blackwells Parties or agreements with any Person relating Blackwells Representatives shall give prompt written notice of such Legal Requirement to the foregoing actions referred to in (a) through (i) aboveCompany; provided, however, that nothing contained in this Section 2.1 clause (k) shall prevent, restrict, encumber, or limit in not require any manner: (A) the Investor or Blackwells Party to opt out of any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by class action lawsuits against the Company after the Second Closing Date that it has entered into not initiated in violation of this clause (k) (“Class Actions”) and to which such Blackwells Party is a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties party solely as a member result of the Board; Blackwells Parties’ ownership of Voting Securities during the class period applicable to such Class Actions;
(l) publicly disclose any intention, plan or arrangement inconsistent with any provisions of this paragraph 4;
(Cm) enter into any negotiations, agreements or understandings with any third party to take any action that any Blackwells Party is prohibited from taking pursuant to this paragraph 4; or
(n) make any request or submit any proposal to amend or waive the Investor or any terms of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, case which would reasonably be expected to result in accordance with the terms hereof and thereofa public announcement of such request or proposal.
Appears in 2 contracts
Sources: Letter Agreement (Blackwells Capital LLC), Letter Agreement (Supervalu Inc)
Standstill. During Except as otherwise provided in this Agreement, without the period prior written consent of the Trustees (such periodor following the Distribution Time, the “Standstill Term”) commencing Board), the Stockholders and the Stockholder Designees shall not, and shall cause their Affiliates and controlled Associates not to, directly or indirectly (in each case, except as of the First Closing Date and continuing until the later of permitted by this Agreement):
(i) the second other than pursuant to Sections 1(a) and 1(b) of this Agreement, nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors are to be elected; (2ndii) anniversary initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(b) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire or otherwise beneficially own (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Second Closing DateTrust or TPL Corp generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Trust or TPL Corp (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in (i) Horizon having ownership or control of, or other beneficial ownership interest in, 23.5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Horizon Cap”), (ii) SoftVest having ownership or control of, or other beneficial ownership interest in, 4.0% or more, in the date on which aggregate, of the Investor ceases to have then-outstanding Sub-share Certificates or shares of the right to designate a director to Common Stock (the Board pursuant to Section 5, and “SoftVest Cap”) or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the date on which aggregate, of the Investor then-outstanding Sub-share Certificates or shares of the Common Stock (including SK ecoplant the “Mission Cap”, and SPVeach of the Horizon Cap, the SoftVest Cap and the Mission Cap, individually, an “Ownership Cap”); provided, however, that, subject to Section 3(c), in the event that the Trust or TPL Corp (A) acquires through share purchases Sub-share Certificates or shares of the Common Stock or (B) undertakes a reverse share split, and its Subsidiaries any of such actions reduces the number of securities of the Trust or TPL Corp outstanding and thereby increases the proportionate number of Sub-share Certificates or shares of Common Stock that a Stockholder has ownership or control of, or otherwise beneficially owns, to a proportion of Sub-share Certificates or shares of the Common Stock that is equal to or greater than the applicable Ownership Cap for such Stockholder (such event, a “Share Reduction Event”), then such Stockholder shall not be deemed to have acquired or otherwise beneficially own less an amount of Sub-share Certificates or shares of the Common Stock that is greater than five percent the number of shares permitted pursuant to such Stockholder’s applicable Ownership Cap (such amount of securities in excess of a Stockholder’s Ownership Cap, the “Excess Shares”) in violation of this Section 3(b) as a result of such Share Reduction Event; provided, further, that such Stockholder shall divest its Excess Shares within a reasonable time period (but in any event, within 30 calendar days of becoming aware of such Share Reduction Event) so that such Stockholder no longer has ownership or control of, or otherwise holds a beneficial ownership interest in, such Excess Shares;
(c) sell or transfer shares of Common Stock, other than in open market sale transactions where the identity of the purchaser or transferee is not known and in underwritten widely dispersed public offerings, to any Third Party that (i) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5.0%) % or more of the shares of Common Stock then issued outstanding at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and outstandingAssociates, has a beneficial or other ownership interest in the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any aggregate of 5.0% or more of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument outstanding at such time, in each case, unless such Third Party is a passive investor that gives the Investor the economic equivalent of ownership of an amount has not been a “reporting person” on a Schedule 13D and would not, in connection with purchasing or holding of securities of the Company TPL Corp, be required to file a Schedule 13D;
(a “Derivative”)d) (i) form, except, nothing join or in this Section 2.1(a) shall prevent any way participate in any group or prohibit the Investor from investing in a fund agreement of any kind with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting voting securities of the stockholders Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Company or propose any matter to be voted upon by the stockholders of the CompanyDistribution Time), or (ii) propose or nominate for election to the Board deposit any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for voting securities of the Company (if such offer Trust or proposal would, if consummated, result TPL Corp in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject subjecting any Trust or TPL Corp voting securities of the Company to any arrangement or agreement with respect to the voting thereof;
(e) seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Governance Documents;
(f) demand an inspection of any proxy (other than pursuant to this Agreement)the Trust’s or TPL Corp’s books and records;
(g) propose make any (i) public or private (other than to the Trustees or the Board) proposal with respect to or (ii) public statement or otherwise seek to encourage, advise or assist any mergerperson in so encouraging or advising with respect to, consolidationin each case: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, business combination(B) any change in the capitalization, dividend or share repurchase policy of TPL Corp, (C) any other change in the Trust’s or TPL Corp’s business, operations, strategy, management, governance, corporate structure, or other affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of TPL Corp to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) initiate, make, effect, seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist any (i) Extraordinary Transaction, (ii) material acquisition of any assets or businesses of the Trust, TPL Corp or any of either the Trust’s or TPL Corp’s subsidiaries, (iii) tender offer or exchange offer, purchase merger, acquisition, share exchange or other business combination involving any of the Company’s voting securities or any of the material assets or businesses, purchase of any securities businesses of the Company Trust or TPL Corp or any Derivativeof their subsidiaries, or any similar transaction involving the Company or (iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary material transaction with respect to the CompanyTrust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in each case without concert with others, to the prior written consent of the Board (Trust or TPL Corp that would reasonably be expected to require a transaction described in clauses public announcement or disclosure regarding any such matter;
(i) and (ii) that would result in a Change of Controlenter into any negotiations, is referred agreements or understandings with any Third Party with respect to as a “Business Combination”);
(h) act in concert with the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request foregoing, or propose to the Board otherwise take or the Company (or cause any action inconsistent with any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))the foregoing;
(j) publicly make or in any public announcement regardingway advance publicly any request or proposal that the Trust or the Board amend, modify or take waive any action that could require the Company to make a public announcement regarding, a potential Business Combination or any provision of the matters set forth in clauses (a) through (i) abovethis Agreement; or
(k) enter into discussionstake any action challenging the validity or enforceability of this Section 3 or this Agreement, negotiations, arrangements unless TPL Corp is challenging the validity or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveenforceability of this Agreement; provided, however, that (i) nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prevent the Stockholders or limit in any manner: Stockholder Designees from making (A) the Investor or any of its Affiliates from making confidentialfactual statement in response to a Legal Requirement, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) any communication to the Investor Designee from performing its duties as a member of the Board; Trust or TPL Corp, or (C) any private communication to investors or prospective investors in any of the Investor Stockholders or any of its Affiliates from exercising their respective rightsAffiliates, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementprovided that, in each case, such statement or communication (1) is based on publicly available information; (2) is not reasonably expected to be required to be publicly disclosed by any person and is understood by all parties to be confidential communication; and (3) is not made with an intent to circumvent any of the restrictions listed in accordance with paragraphs (a) through (k) of this Section 3 or Section 4; and (ii) the restrictions in this Section 3 shall not restrict the Stockholders or Stockholder Designees from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as the other stockholders of the Trust or TPL Corp or from participating in any such transaction that has been approved by the Trustees or the Board, as applicable, subject to the other terms hereof and thereof.of this Agreement. Nothing in this Agreement shall limit the exercise in good faith by any Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 2 contracts
Sources: Stockholders' Agreement (SoftVest, LP), Stockholders Agreement (Texas Pacific Land Trust)
Standstill. During the period (such period, the “Standstill Term”a) commencing Except as otherwise expressly provided in this Agreement or as specifically approved in writing by 66-2/3% of the First Closing Date and continuing until the later members of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by for a period of three (3) years from the date of this Agreement:
(a) other than Permitted Purchases and purchases , neither London Bridge, nor any of Preemptive Right Sharesits Affiliates or Associates, nor any Group which London Bridge Controls shall, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;:
(bi) make a tenderby purchase or otherwise, exchange acquire, agree to acquire or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the CompanyBeneficial Ownership of, or any Liens with respect to, any Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities (ii) propose or nominate for election to the Board including any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if anyvoting trust certificates representing such securities);
(dii) directly or indirectlyenter into, encouragepropose to enter into, accept solicit or support a tenderany Buyout Transaction or Third Party Offer, exchange or other offer purchase, acquire or proposal by propose to purchase, acquire, solicit or support the purchase or acquisition of any other Person or group (an “Offeror”) for securities portion of the Company (if such offer business or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, of its Subsidiaries by London Bridge or by any similar transaction involving the Company of its Affiliates or (ii) Associates or by any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Person;
(hiii) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipGroup (other than a Group that may be formed in the future consisting solely of London Bridge and its Affiliates) formed for the purpose of acquiring, limited partnershipholding, syndicatevoting or disposing of or taking any other action with respect to Voting Securities other than the Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than the Company with respect to any Voting Securities, or other group” become a "participant" in an "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A under the rules Exchange Act) relating to the Board, or otherwise attempt to acquire or alter Control of the SEC with respect to the Company business or any securities affairs of the Company;
(iv) request deposit any Voting Securities in a voting trust or propose enter into any voting agreement or arrangement with respect thereto (other than this Agreement) which would entitle any Person to Control more than 10% of the Board or Total Voting Power of the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Company;
(jvi) make publicly propose to do or permit any public announcement regardingof the foregoing, publicly propose to revise any of the standstill provisions of this Agreement, or otherwise take any action that could require challenging the Company to make a public announcement regarding, a potential Business Combination validity or any enforceability of the matters set forth in clauses (a) through (i) aboveforegoing or which would be inconsistent with the foregoing; or
(kvii) enter into discussionsassist, negotiationsadvise, arrangements encourage, provide funds for, negotiate or agreements otherwise participate with or support any Person relating with respect to, or otherwise seek to do, any of the foregoing actions referred to or, except as set forth in Section 2.3 below, participate, assist, advise, encourage, provide funds for or otherwise support any Third Party Offer.
(ab) through Nothing in this Agreement shall (i) aboveprohibit or restrict London Bridge from responding to any inquiries from any Other Holders as to London Bridge's intention with respect to the voting of any Voting Securities Beneficially Owned by it so long as such response is consistent with the terms of this Agreement; provided, however, that nothing contained (ii) prohibit London Bridge from Beneficially Owning Voting Securities issued as dividends or distributions in this Section 2.1 shall prevent, restrict, encumberrespect of, or limit in issued upon conversion, exchange or exercise of, securities which London Bridge is permitted to Beneficially Own under this Agreement; (iii) prohibit any manner: (A) the Investor employee or agent of London Bridge from purchasing or otherwise acquiring Voting Securities so long as he or she is not a member of a Group that includes London Bridge or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member or Associates or is not otherwise acting on behalf of the Board; or (C) the Investor London Bridge or any of its Affiliates or Associates; or (iv) prohibit London Bridge from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, disclosing in accordance with its obligations (if any) under the terms hereof and thereoffederal securities laws or other applicable law (if any) that the Company has become the subject of a Buyout Transaction or a Third Party Offer.
Appears in 2 contracts
Sources: Governance Agreement (London Bridge Software Holdings PLC), Governance Agreement (Phoenix International LTD Inc)
Standstill. During (a) ▇▇▇▇ agrees that from the period (such period, the “Standstill Term”) commencing as date of the First Closing Date and continuing this Agreement until the later of (i) the second (2nd) first anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have KLIM no longer has the right to designate nominate a director KLIM Designee to the Board of Directors pursuant to Section 55.1, and (iii) without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of a majority of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any disinterested members of the followingBoard of Directors, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesKLIM shall not, directly or indirectly, acquire beneficial ownership and shall cause its Affiliates (including any Purchaser) not to, directly or indirectly:
(i) acquire, agree to acquire, or offer to acquire, by purchase or otherwise, any additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders securities of the Company, other than Conversion Shares issuable or issued upon conversion of the Notes in accordance with the terms thereof;
(ii) propose make, engage in, or nominate for election to the Board in any person whose nomination has not been approved by a majority way, participate in any “solicitation” of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under 14 of the Exchange Act)) to vote, or seek to advise or influence any Person, Person with respect to the voting of, any equity interests of the Company in favor of the election of any securities person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee) or in opposition of any individual nominated or designated for appointment or election to the CompanyBoard of Directors by the Company (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation);
(fiii) nominate any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee);
(iv) deposit any equity securities of the Company in a voting trust or similar contract or agreement or subject any equity securities to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any equity securities (in each case, other than to the Company or a Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the Company by or on behalf of the Company);
(v) make any public announcement with respect to, enter, agree to enter, propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its Subsidiaries, or purchase of a material portion of the assets, properties or equity securities of the Company, other than acquisitions of Conversion Shares pursuant to the Transaction Documents in accordance with the terms thereof;
(vi) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act), or knowingly advise, assist or encourage, or enter into any agreement with, any other Person, in connection with any action prohibited by this Section 4.3(a);
(vii) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements, or arrangements with any other Persons in connection with the matters prohibited by Section 4.3(a);
(viii) make public disclosure inconsistent with the requirements of this Section 4.3(a), or take any action that would reasonably be expected to require the Company to make any arrangement or agreement public disclosure with respect to the voting of such securities, including the granting of any proxy (other than pursuant to matters set forth in this AgreementSection 4.3(a);; or
(gix) propose publicly disclose any intention, plan, or proposal with respect to any of the foregoing.
(b) Notwithstanding Section 4.3(a), the foregoing provisions of Section 4.3(a): (i) shall not restrict KLIM’s ability to make a confidential proposal to the Board of Directors that is not required to be publicly disclosed under applicable law, (ii) shall not, and are not intended to restrict in any manner how KLIM or its Affiliates votes their Conversion Shares or exercises any rights under this Agreement or any other Transaction Document, and (ii) shall not, and are not intended to restrict in any manner KLIM or its Affiliates (A) from purchasing, holding or trading any Notes, (B) in their respective capacity as a lender of the Company or any of its Affiliates (including exercising, protecting, preserving or enforcing any rights, interests or remedies and/or taking any other actions, in each case in such capacity), or (C) from making any public announcement or statement (each, a “Response”) in response to any public announcement, proposal, offer or solicitation made by any other Person, provided, that at least five (5) Business Days prior to making any such Response, KLIM or its Affiliates shall provide the Company with prior written notice of KLIM’s or its Affiliate’s intention to make the Response and a draft of such Response, and the Company shall have a reasonable opportunity to provide comments to the draft Response, which comments shall be considered by KLIM or its Affiliate (as applicable) in good faith if timely provided.
(c) Notwithstanding Section 4.3(a), the restrictions set forth in this Section 4.3 shall terminate and be of no further force and effect if: (i) the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving more than fifty percent (50%) of any class of the Company’s equity securities, or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, purchase recapitalization, restructuring, sale, equity issuance, or otherwise), (ii) any Person or group publicly announces or commences a tender or exchange offer to acquire more than fifty percent (50%) of any class of the Company’s assets or businessesequity securities, purchase (iii) a change of any securities a majority of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent membership of the Board of Directors (excluding any change approved by a transaction described in clauses (i) and (ii) that would result in a Change majority of Control, is referred the directors serving on Board of Directors prior to as a “Business Combination”such change);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (iv) any Event of Default under the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors Notes has occurred and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofis continuing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Douglas Elliman Inc.), Securities Purchase Agreement
Standstill. During the period (such periodcommencing on the date hereof and ending on the Standstill Termination Date, without the “Standstill Term”) commencing as prior consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DateCompany, (ii) the date on which the each Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do agrees that neither it nor any of the followingits Affiliates will (and each Investor will cause its Affiliates to not), except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases the acquisition of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership additional shares of Common Stock and/or by (i) the Warrant Holders pursuant to the the Warrant Agreements, (ii) Gavilan pursuant to any right of first offer under the Joint Development Agreement or (iii) the Warrant Holders or Gavilan pursuant to the exercise of Rights associated with the Common Stock Equivalents and/or owned by the Investors or their respective Affiliates, acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any instrument of the Company Group’s corporate loans, debt securities, Voting Securities, other Company Group securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the Voting Securities or other Company Group securities of any member of the Company Group or all or substantially all of the assets of any member of the Company Group;
(b) (i) call a special meeting of the holders of Voting Securities of any member of the Company Group including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group, (iv) solicit consents from securityholders or otherwise act or seek to act by written consent with respect to the Company Group, (v) conduct a referendum of securityholders of any member of the Company Group or (vi) make a request for any securityholder list or other Company Group books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
(c) make any statement or proposal to the Board of any member of the Company Group regarding, or make any public announcement, proposal or offer (including without limitation any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including without limitation, for the avoidance of doubt, indirectly by means of communication with the press or media):
(i) any acquisition of any of the securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the securities or all or substantially all of the assets of any member of the Company Group;
(ii) any business combination, merger, tender offer, exchange offer, similar transaction or other extraordinary transaction involving any member of the Company Group;
(iii) any restructuring, recapitalization, liquidation or similar transaction involving any member of the Company Group;
(iv) any proposal to seek representation on the Board of any member of the Company Group or otherwise seek to control or influence the management, the Board or policies of any member of the Company Group, including without limitation (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or other actions that gives may impede or facilitate the Investor acquisition of control of any member of the economic equivalent of ownership of an amount Company Group by any Person, (E) causing a class of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companydelisted from, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeecease to be authorized to be quoted on, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities exchange; or (F) causing a class of the Company;
(f) deposit any securities of the Company in a voting trust or subject any equity securities of the Company to any arrangement or agreement with respect to the voting become eligible for termination of such securities, including the granting of any proxy (other than registration pursuant to this Agreement)Section 12(g)(4) of the Exchange Act;
(g) propose (iv) any mergerrequest or proposal to waive, consolidation, business combination, tender terminate or exchange offer, purchase amend the provisions of this Agreement if such request or proposal would require the Company’s assets Investor or businesses, purchase of any securities member of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect Group to the Company, in each case without the prior written consent of the Board (make a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)public announcement;
(hvi) act in concert any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including without limitation this Section 2.1; or
(d) [reserved]
(e) knowingly instigate, encourage or assist any third party (including without limitation forming a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any Third Party such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in Section 2.1(c); or
(f) take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in which would require any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules member of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company Group to make a public announcement regarding, a potential Business Combination or regarding any of the matters actions set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof2.1(c).
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Sanchez Energy Corp)
Standstill. During the period (such periodcommencing on the date hereof and ending on the Standstill Termination Date, without the “Standstill Term”) commencing as prior consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary Company, each of the Second Closing DateGSO Funds agrees that none of it, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5GSO, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do nor any of the followingtheir Affiliates, except as approvedshall, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) effect or seek, offer or propose to effect:
(i) any acquisition (or proposal or agreement to acquire), of record or beneficially, by purchase or otherwise, of any of the Common Stock, or rights or options to acquire interests in any of the Common Stock (or any other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities thereof) of the Company (a “Derivative”other than the acquisition of Underlying Shares by any of the GSO Funds pursuant to (x) the express terms of the Statement of Resolutions to satisfy dividends or distributions or upon redemption settled in Common Stock or (y) the exercise of any Warrant), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bii) make a tenderany business combination, exchange merger, tender offer, similar transaction, acquisition of all or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting substantially all of the stockholders assets of the Company or propose other extraordinary transaction involving any matter to be voted upon by the stockholders member of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Company Group;
(diii) directly or indirectlyany proposal advanced publicly to seek any restructuring, encouragerecapitalization, accept or support a tenderliquidation, dissolution, exchange or other offer or proposal by similar transaction involving any other Person or group (an “Offeror”) for securities member of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Group;
(eiv) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A the proxy rules of the SEC) or consents to vote or consents to vote or otherwise with respect to any voting securities of any member of the Company Group, or make any communication exempted from the definition of “solicitation” by Rule 14a 1(1)(2)(iv) under the Exchange Act);
(v) other than pursuant to and in accordance with the rights expressly granted to the holders of the Preferred Stock in Section 9(b) of the Statement of Resolutions, any proposal advanced publicly to seek representation on the Board of any member of the Company Group or otherwise publicly seek to control or influence the management, the Board or policies of any member of the Company Group, including, without limitation, (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or seek to advise other actions that may impede or influence facilitate the acquisition of control of any member of the Company Group by any Person, with respect to voting (E) causing a class of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any arrangement securities exchange; or agreement (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;
(i) call a special meeting of the holders of Voting Securities of any member of the Company Group, including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group that is elected by holders of Voting Securities, (iv) solicit consents from holders of Voting Securities or otherwise act or seek to act by written consent with respect to the voting Company Group, or (v) make a request for any list of such securities, including holders of Voting Securities or other Company Group books and records; except to appoint and elect up to two directors to the granting of any proxy (other than Board pursuant to this Agreement)and in accordance with the rights expressly granted to the holders of the Preferred Stock in Section 9(b) of the Statement of Resolutions;
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipgroup” (within the meaning of Section 13(d)(3) of the Exchange Act) with any third party or knowingly instigate, limited partnership, syndicateencourage or assist any third party to do, or other group” as such terms are used enter into any discussions or agreements with any third party, in the rules each case, with respect to, any of the SEC with respect to actions set forth in Section 2.1(a); provided that the Company or any securities inclusion of the Company;
(i) request or propose to the Board or the Company (GSO or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) together solely with The Blackstone Group L.P. and/or its other professional representatives), directly Affiliates shall not constitute a breach or indirectly, any amendment or waiver of any provision violation of this Section 2.1 (including this clause (i2.1(c));
(j) make any public announcement regarding; provided, or further that such “group” does not take any action that could is restricted by this Section 2.1.
(d) take any action which is reasonably likely to cause or require GSO, the GSO Funds or any member of the Company Group to make a public announcement regarding, a potential Business Combination or regarding any of the types of matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in 2.1; provided that any manner: (A) the Investor public disclosure by GSO or any of its Affiliates from making confidentialon Schedule 13D, nonpublic proposals Schedule 13G or otherwise pursuant to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member Section 16 of the Board; Exchange Act or by any “group” (Cwithin the meaning of Section 13(d)(3) of the Investor Exchange Act) of which GSO or any of its Affiliates from exercising their respective rights, performing their respective obligations are members with The Blackstone Group L.P. and/or its other Affiliates shall not constitute a breach or violation of this Section 2.1(d) if the action disclosed in such filings is otherwise consummating the transactions contemplated permitted by this AgreementSection 2.1; or
(e) publicly disclose any intention, the Purchase Agreement, Joint Venture Agreement, plan or the Preferred Distributor Agreement, in each case, in accordance arrangement inconsistent with the terms hereof and thereofthis Section 2.1.
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Carrizo Oil & Gas Inc)
Standstill. During Without the prior written consent of the Board, each Member will not, and will cause each of its respective affiliates, associates and Representatives not to, do, directly or indirectly, any of the following for a period commencing on the date hereof and ending on the date that is ten days prior to the deadline for stockholders to submit nominations for the 2014 Meeting (or, if a Raging Capital Designee is nominated for election at the 2014 Meeting by the Company in accordance with Section 1(d), the date that is ten days prior to the deadline for stockholders to submit nominations for the 2017 Meeting) (such period, the “Standstill TermPeriod”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:):
(a) (i) acquire, offer or agree to acquire (except by way of stock dividends or other than Permitted Purchases and purchases distributions or offerings made available to holders of Preemptive Right Sharesvoting securities of the Company generally on a pro rata basis), directly or indirectly, acquire beneficial ownership whether by purchase, tender or exchange offer, through the acquisition of Common Stock and/or Common Stock Equivalents and/or control of another person or entity, by joining a partnership, limited partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company or any voting rights decoupled from the underlying voting securities which would result in the Raging Capital Group (a together with any other person or entity, partnership, limited partnership, syndicate or other “Derivative”), except, nothing group” referred to in this Section 2.1(a4(a)) shall prevent owning, controlling or prohibit the Investor from investing otherwise having any ownership interest in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting more than 14.9% of the stockholders then-outstanding shares of the Company or propose any matter to be voted upon by the stockholders common stock of the Company, or (ii) knowingly sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by such Member to any Third Party (as defined below) which would result in such Third Party, together with its affiliates and associates having any ownership interest in more than 14.9% of the then-outstanding shares of common stock of the Company, except in a transaction approved by the Board;
(i) engage, or in any way participate, directly or indirectly, in any “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) of proxies or consents in any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Company), (ii) seek to advise, encourage or influence any person or entity with respect to the voting of any voting securities of the Company in any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Company), (iii) initiate, propose or nominate otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC 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 or entity to initiate any such stockholder proposal;
(c) form, join or in any way participate in a partnership, syndicate, or other group, including without limitation any “group” as defined under Section 13(d)(3) of the Exchange Act, with respect to any voting securities of the Company in connection with any “election contest” with respect to the Board any person whose nomination has not been approved by a majority Company’s directors (regardless of whether it involves the election or removal of directors of the Board Company), other than a “group” that (excluding 1) includes all or some lesser number of the Investor Designeepersons or entities identified as “Reporting Persons” (or affiliates thereof) in the Raging Capital Schedule 13D (as defined below) and the signatories to this Agreement, if any)and (2) does not include any other members who are not currently identified as Reporting Persons (or affiliates thereof) or parties to this Agreement;
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any Company voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting of such securitiesthereof, including the granting of any proxy (other than pursuant to except as expressly set forth in this Agreement);
(ge) seek, alone or in concert with others, (1) to call a meeting of stockholders or solicit consents from stockholders or conduct a referendum of stockholders, (2) to obtain representation on the Board except as otherwise expressly permitted in this Agreement, (3) to effect the removal of any member of the Board, provided that this shall not pertain to any Raging Capital Designee, (4) to make 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;
(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 mergeracquisition of more than 14.9% of any securities, consolidation, business combination, tender or exchange offer, purchase of the Company’s any material assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving more than 14.9% of any of the voting securities or any similar transaction involving of the material assets or businesses of the Company or any of its subsidiaries, or (iiiii) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses; provided that this Section 3(f) shall not prohibit any Member from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or as part of a transaction between the Company, in each case without on the prior written consent one hand, and any member of the Board (or any of the Company’s executive officers, on the other hand, or from offering to purchase the securities of the Company if a transaction described in clauses (i) and (ii) that would result member of the Company’s management has publicly offered to acquire all or substantially all of the equity securities of the Company in a Change of Control“take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act; provided, is referred to as a “Business Combination”);further, that this Section 3(f) shall not prohibit any Member from participating in any transaction approved by the Board; or
(hg) act in concert 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 in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsforegoing, negotiations, arrangements or agreements otherwise take or cause any action inconsistent with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Settlement Agreement (Raging Capital Management, LLC), Settlement Agreement (Resource America, Inc.)
Standstill. During the term of his employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) other than in his capacity as an officer or director of the Company, seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving holder of voting securities of the Company Company; or
(iii) be employed by any person (other than NorthStar) that, directly or (iithrough its affiliates, engages in any of the foregoing. Notwithstanding anything in this Section 7(d) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Companycontrary, in each case without the prior written consent of the Board no action described above taken by NorthStar (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, whether directly or indirectly, formvoluntarily or involuntarily) shall be considered to be a violation of this Section 7(d) by Executive. Exercise of options, join or in any way participate in a “partnershipconversion of LTIP Units, limited partnership, syndicate, vesting and delivery of shares of Common Stock pursuant to equity or other group” awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in connection with or as such terms are used in the rules a result of the SEC Executive’s employment with respect to the Company or any securities service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Company;
(i) request or propose Executive, the Executive will no longer be subject to the Board or the Company (or any limitations of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesSections 7(d), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 12 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. During (a) For a period of twelve months following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rightsor any person acting jointly or in concert with the Purchaser) to do or seek to do any of the foregoing; or (vi) advise, performing their respective obligations assist, encourage or otherwise consummating act jointly or in concert with any other person in connection with any of the transactions contemplated foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by this AgreementGCIC Ltd., the Purchase Agreementmanager of the Vendor, Joint Venture Agreement(the “Manager”) or any of its affiliates, other than the Vendor, unless such fund or product is managed by XXX, the Preferred Distributor Agreement, in each case, in accordance with lead portfolio manager of the terms hereof and thereofVendor.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.), Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. During (a) For a period of twelve months following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rightsor any person acting jointly or in concert with the Purchaser) to do or seek to do any of the foregoing; or (vi) advise, performing their respective obligations assist, encourage or otherwise consummating act jointly or in concert with any other person in connection with any of the transactions contemplated foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by this AgreementGCIC US Ltd., the Purchase Agreementmanager of the Vendor, Joint Venture Agreement(the “Manager”) or any of its affiliates, or other than the Preferred Distributor Agreement, in each case, in accordance Vendor and XXX (whose relationship with the Purchaser is governed by a Securities Purchase Agreement of even date herewith (the “XXX Agreement”) and the terms hereof of which agreement shall prevail in the event of any inconsistency or conflict between this Agreement and thereofthe XXX Agreement), unless such fund or product is managed by XXX, the lead portfolio manager of the Vendor.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.), Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. During Except with the period (such period, the “Standstill Term”) commencing as prior written consent of the First Closing Date and continuing until Company, at all times during the later of Standstill Period (i) the second (2nd) anniversary of the Second Closing Dateas defined below in Section 21), (ii) the date on which the each Investor ceases to have the right to designate a director to the Board pursuant to Section 5agrees, severally, but not jointly, not to, directly or indirectly, and will cause each of its respective Affiliates (iiias defined in Section 21) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingnot to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other than Permitted Purchases and purchases individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of Preemptive Right Sharesany kind or structure (collectively, directly a "Person") to effect or indirectlyseek, acquire beneficial ownership offer or propose (whether publicly or otherwise) to effect or participate in, any "solicitation" of Common Stock and/or Common Stock Equivalents and/or "proxies" (as such terms are used in the proxy rules of SEC) to vote any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Voting Securities of the Company (a “Derivative”)or consent to any action from any holder of any Voting Securities of the Company or conduct or suggest any binding or nonbinding referendum or resolution or seek to advise, except, nothing in this Section 2.1(a) shall prevent encourage or prohibit the Investor from investing in a fund influence any Person with respect to which the Investor does not have voting of or share decision-making authority over investment or divestment decisionsthe granting of any consent with respect to any Voting Securities of the Company;
(b) make a tenderpropose or nominate, exchange or other public offer cause or encourage any Person to acquire Common Stock and/or Common Stock Equivalentspropose or nominate, any candidates to stand for election to the Board, or seek the removal of any member of the Board;
(c) directly form, join or indirectlyotherwise participate in any "partnership, limited partnership, syndicate or other group" (iother than any group among some or all of the Affiliates of the Investors) within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock, or deposit any shares of Common Stock in a voting trust or similar arrangement, or subject any shares of Common Stock to any voting agreement or pooling arrangement, or grant any proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or otherwise act in concert with any Person with respect to the Common Stock (other than Affiliates of the Investors);
(d) seek to have called any call, or to request the call of, or call a special meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate make a request for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control list of the Company, such offer 's stockholders or proposal is referred to as an “Acquisition Proposal”)other Company records;
(e) directly otherwise act, alone or indirectlyin concert with others, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), to control or seek to advise control, to seek representation on, or to influence any Personor seek to influence, with respect to voting of any securities whether through litigation or otherwise, the management, the Board or the policies of the Company; provided, however, that nothing herein shall prohibit the Investors from complying with legal or regulatory requirements, including, without limitation, the filing of any report or schedule required to be filed with the SEC, and provided, further that each of the Investors and their Affiliates, may privately communicate their views to the management or the Board;
(f) deposit effect, seek to effect or in any way assist or facilitate any other Person in effecting or seeking to effect any: (i) tender offer or exchange offer to acquire securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting Company; (ii) acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) interest in any merger, consolidation, material asset or business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries; (iii) merger, acquisition, share exchange or any similar transaction other business combination involving the Company or any of its subsidiaries; or (iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyCompany or any of its subsidiaries or material portion of its or their businesses;
(g) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through any swap or hedging transaction or otherwise, any security of the Company or any right decoupled from such underlying security held by either Investor to any Person that would knowingly result in such Person, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 10% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Person who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 10% or more of the shares of the Common Stock outstanding at such time, except in each case without the prior written consent of the Board (in a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)approved by the Board;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to request that the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly Representatives amend or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above3; or
(ki) enter into discussionsotherwise take, negotiationsor solicit, arrangements cause or agreements encourage others to take, any action inconsistent with any Person relating of the foregoing. Notwithstanding anything to the foregoing actions referred to in (a) through (i) above; providedcontrary, however, that nothing contained in this Section 2.1 Agreement shall preventprohibit or restrict any director of the Company, restrictincluding any New Nominee, encumber, from exercising his or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its her rights and fiduciary duties as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Director Nomination Agreement (Springowl Associates LLC), Director Nomination Agreement (Forestar Group Inc.)
Standstill. During the period commencing with the Effective Date and ending August 1, 2023 (such period, the “Standstill TermPeriod”) commencing as of ), the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive will not, and will cause each of his Affiliates (iii) the date on which the Investor or any other person or entity (including SK ecoplant and SPVany Associate) and its Subsidiaries beneficially own less than five percent (5.0%acting on behalf of or at the Executive’s direction or otherwise with the Executive’s encouragement or support) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner (including by assisting, encouraging or participating with others to), alone or in concert with others (in each case, except as approved by a resolution of the Board or any committee thereof empowered to take such action):
(a) acquire, offer, seek or propose to acquire, or agree to acquire, ownership (beneficial or otherwise, and in any manner) of any debt or equity securities of the Company (including Common Stock) or rights or options to acquire beneficial such ownership or securities convertible or exchangeable into such ownership (including Redeemable Warrants), in each case excluding securities of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount Company issued as a dividend or otherwise in respect of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent otherwise owned by any such person or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany;
(b) make a tenderacquire, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyoffer, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyacquire, or agree to acquire, ownership (iibeneficial or otherwise, and in any manner) propose of any instruments, real or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board synthetic, that give Executive or his Affiliates or Associates (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person person or group (an “Offeror”entity acting on behalf of or at the Executive’s direction) for securities of the Company (if such offer right to vote or proposal would, if consummated, result in a Change of Control of direct the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any , in each case excluding securities of the Company issued as a dividend or otherwise in a voting trust or subject any respect of securities of the Company to otherwise owned by any arrangement or agreement with respect to the voting of such securities, including the granting of person and excluding any proxy (other than pursuant to this Agreement)Earnout Shares and/or Adjustment Escrow Stock;
(gc) propose (i) or effect any tender or exchange offer, merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Company or its subsidiaries;
(a transaction described in clauses d) (i) and make or participate in any “solicitation” (as defined under the Exchange Act) of proxies or consents with respect to the election or removal of directors or any other proposal (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation); (ii) that would result in a Change seek or knowingly encourage election to or representation on the Board, or nominate or recommend the nomination of Controlany candidate to the Board, is referred or the removal of any member of the Board, or call or seek to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orcall, directly or indirectly, any special meeting of shareholders of the Company for any reason whatsoever; (iii) make any stockholder proposal; (iv) seek or advise or influence any person or entity with respect to the voting of any securities of the Company; (v) engage in any course of conduct with the purpose of causing shareholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote or challenging the policies of the Company; or (vi) otherwise act, alone or in concert with others, to seek to control or influence the management, Board, policies or affairs of the Company;
(e) form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC Exchange Act) with respect to the Company or any securities of the Company (other than (i) any group previously identified prior to the date hereof in the Schedule 13D filed by the Executive and (ii) the Irrevocable Proxy described in Section 16(k));
(f) seek to change the determination or direction of the basic decisions of the Company, the present capitalization or dividend policy of the Company, the Company’s organizational documents or take any other actions which may impede the acquisition or control of the Company by any person or entity, or otherwise take any action inconsistent with the ownership of securities “solely for the purpose of investment”;
(g) engage in any course of conduct causing the Company’s securities to become eligible for termination of registration pursuant to Section 12(g) of the Exchange Act;
(h) make a request (public or otherwise) that the prohibitions set forth in this Section 16 be waived or that the Company take any action which would permit the Executive or his Affiliates or Associates to take any of the actions prohibited by this Agreement;
(i) request publicly disclose (whether via social media platform or propose to otherwise) any intention, plan or arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));foregoing; or
(j) make knowingly encourage or assist any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or other Person in undertaking any of the matters set forth in clauses (a) through (i) above; orforegoing.
(k) enter into discussionsIn addition, negotiationsduring the Standstill Period, arrangements the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or agreements with any Person relating to by proxy at each meeting of the foregoing actions referred to in Company’s stockholders (a“Stockholder Meeting”) through and either (i) above; provided, however, that nothing contained vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) (the “Remaining Executive Shares”) at such Stockholder Meeting in this Section 2.1 shall prevent, restrict, encumberfavor of any proposal recommended by the Board, or limit (ii) abstain from voting the Remaining Executive Shares at such Stockholder Meeting. Executive acknowledges and agrees that his attendance at each Stockholder Meeting shall not be, nor be deemed to be, “in any manner: (A) protest”. In addition, simultaneously with the Investor or any execution of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementExecutive shall execute and deliver to the Company and the Board an Irrevocable Proxy (in the form attached hereto as Exhibit C) irrevocably granting the Board the power and authority to represent the Executive at any Stockholder Meeting and (aa) vote the Remaining Executive Shares in favor of any proposal advanced by the Board, or (bb) abstain from voting the Preferred Distributor AgreementRemaining Executive Shares, such Irrevocable Proxy to become effective only in each casethe event that and for so long as the Executive fails to (xx) otherwise appear in person or by proxy at any Stockholder Meeting or (yy) vote the Remaining Executive Shares in the manner set forth in this Section 16(k).
(l) If a Change in Control occurs prior to the end of the Standstill Period, then the Executive’s obligations under this Section 16 shall cease to apply as of the date of the consummation of such Change in accordance with the terms hereof and thereofControl.
Appears in 2 contracts
Sources: Settlement Agreement (Electric Last Mile Solutions, Inc.), Settlement Agreement (Electric Last Mile Solutions, Inc.)
Standstill. During (a) Subject to the terms and conditions of this Section 5.1, for a period of 18 months following the date hereof, neither the Investor nor any of its Affiliates will, without the prior approval of the Company:
(such periodi) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase, merger, take-over bid, business combination or otherwise, individually or acting jointly or in concert with any other Person (as determined in accordance with Section 1.9 of NI 62-104, hereinafter referred to as “Acting Jointly or in Concert”), any voting securities of the Company and/or Convertible Securities (a “Standstill TermShare Transaction”) commencing as if such Share Transaction would result in the Investor and its Affiliates having, directly or indirectly, beneficial ownership of, or control or direction over, more than 19.9% of an outstanding class of voting securities of the First Closing Date and continuing until Company (calculated in accordance with Section 1.8 of NI 62-104);
(ii) directly or indirectly, make, or in any way participate in, any solicitation of proxies to vote, or encourage, seek to advise or influence any other Person (other than an Affiliate of the later Investor) with respect to the voting of any voting securities of the Company (other than in respect of the voting securities of the Company held by the Investor pursuant to subsection (a)(i) of this Section 5.1 or Section 5.1(c));
(iii) otherwise act alone or in concert with others to seek to control the management of the Company or the Board or policies of the Company, other than through any Board Designee that may be elected to the Board;
(iv) enter into any discussions, arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aid, assist or encourage any other Person with respect to the foregoing; or
(v) make any public announcement with respect to the foregoing, except as may be required by applicable law, regulatory authorities or stock exchanges.
(b) The restrictions contained in Section 5.1(a) shall terminate immediately upon the earlier of (each a “Spring Event”):
(i) the second (2nd) anniversary date on which the Company or the Board announces an intention to agree or agrees with a Third Party to a merger, amalgamation, arrangement or similar transaction or the sale, directly or indirectly, of all or substantially all of the Second Closing Dateassets of the Company (collectively, a “Transaction”) which, if such Transaction is successfully completed, will result in shareholders of the Company holding less than 50% of the outstanding voting securities of the resulting corporation or entity;
(ii) the date on which the Investor ceases to have the right to designate Company enters into an agreement with a director to the Board Third Party pursuant to Section 5which the Company has agreed to support and recommend, and or announces its support for or recommendation in favour of, a take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company made by a Third Party (or an Affiliate of such Third Party);
(iii) the date upon which a Third Party makes an unsolicited take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company, or announces an intention to do so;
(iv) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do Company or any of its Affiliates agrees to the followingtransfer, except as approved, invited sale or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesdisposition, directly or indirectly, acquire of all or substantially all of the assets of the Company, on a consolidated basis, or announces an intention to do so; or
(v) the date on which a Third Party (together with any Affiliates) enters into an agreement to acquire, or acquires, (A) direct or indirect beneficial ownership of, (B) the right to exercise control or direction over, or (C) a combination of direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives and the Investor the economic equivalent of ownership of an amount of right to exercise control or direction over securities of the Company (a “Derivative”)Company, exceptwhich together with any securities already directly or indirectly held or controlled by the Third Party and its Affiliates, nothing in this Section 2.1(a) shall prevent or prohibit aggregate would constitute more than 50% of the Investor from investing in a fund with respect voting rights attached to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;outstanding voting securities of the Company.
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained The restrictions in this Section 2.1 5.1 shall prevent, restrict, encumber, or limit in any manner: (A) not prevent the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by acquiring securities of the Company after where such acquisition results from the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor Investor’s or any of its Affiliates from exercising their respective rights, performing their respective obligations Affiliates’ acquisition of the securities of a Person or otherwise consummating company which acquired the transactions contemplated by securities of the Company without the Investor’s solicitation or breach of this Agreement, provided that the Purchase Agreementprimary assets of such Person are not Common Shares, Joint Venture Agreementvoting securities or other securities convertible into Common Shares.
(d) Notwithstanding anything in this Section 5.1, the Investor shall be permitted at any time to make a confidential proposal to the Board regarding any of the transactions or the Preferred Distributor Agreementactivities contemplated in Section 5.1(a), in each case, in accordance to enter into confidential discussions or negotiations with the Board with respect to the terms hereof of any such transactions or activities and thereofto enter into any agreement with the Company providing for or relating to the consummation of any such transactions or activities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Skeena Resources LTD), Option Agreement (Skeena Resources LTD)
Standstill. During The Shareholder hereby agrees that, for a period of one year from the period (such perioddate hereof, without the prior written consent of the Company, the “Standstill Term”) commencing as Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of the First Closing Date and continuing until the later of its Affiliates not to, directly or indirectly:
(i) the second acquire, publicly announce an intention to acquire, offer or propose to acquire, or agree to acquire (2nd) anniversary except, in any case, by way of the Second Closing Date, (ii) the date on which the Investor ceases stock dividends or other distributions or offerings made available to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of any Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesgenerally), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any equity securities of the Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire beneficial ownership additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives in open market or privately-negotiated transactions as long as the Investor the economic equivalent Shareholder and its Affiliates, collectively, shall not, as a result of ownership such purchase or purchases, beneficially own in excess of an amount of securities 25% of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock;
(bii) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, in any "solicitation" (i) seek to have called any meeting as such term is used in the proxy rules of the stockholders Commission as in effect on the date hereof) of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents (whether or propose not relating to the election or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Actremoval of directors), or seek to advise advise, encourage or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such securities, including term is used in the granting proxy rules of any proxy (other than the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to this Agreement)Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(giii) propose seek, propose, or make any public statement (iwhether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivative, of its Affiliates or solicit or encourage any similar transaction involving the Company other Person to make any such public statement or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)proposal;
(hiv) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to any Voting Securities, other than 63 groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or any securities its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the management, Board of Directors or policies of the Company;
(iviii) request seek, alone or propose to in concert with others, representation on the Board or of Directors of the Company or seek the removal of any member of the Board of Directors;
(ix) make any publicly disclosed proposal or enter into any discussion regarding any of its officersthe foregoing;
(x) publicly make any proposal, directorsstatement or inquiry, Affiliates employeesor publicly disclose any intention, attorneysplan or arrangement (whether written or oral) inconsistent with the foregoing, accountantsor publicly make or disclose any request to amend, financial advisors and other professional representatives), directly waive or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a public announcement regarding, a potential Business Combination Certificate of Incorporation or any By-laws of the matters set forth in clauses (a) through (i) aboveCompany; or
(kxi) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance or assist, any other Person in connection with any Person relating to of the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumberforegoing, or limit make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Standstill. During Armistice agrees that until the period Termination Date, it shall not, and shall cause its Affiliates and Associates and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (such periodcollectively, the “Standstill TermArmistice Affiliates”) commencing as of not to, directly or indirectly, without the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases make, engage in or in any way participate in any “solicitation” (as such term is used in the proxy rules of the Securities and purchases Exchange Commission (the “SEC”), but without regard to the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of Preemptive Right Shares1934, directly as amended (the “Exchange Act”)) of proxies, consents or indirectly, acquire beneficial ownership voting authorizations with respect to the election or removal of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities directors of the Company (or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “Derivative”)participant” (as such term is used in the proxy rules of the SEC) or assist any “participant” in any such solicitation of proxies, except, nothing in this Section 2.1(a) shall prevent consents or prohibit voting authorizations from the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsCompany’s stockholders;
(b) make a tenderencourage, exchange influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other public offer authorization to acquire vote any shares of the Company’s common stock, par value $0.001 per share (the “Common Stock and/or Common Stock EquivalentsStock”) (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(c) directly form, join, encourage, influence, advise, act in concert with or indirectly, in any way participate in any “group” (ias defined pursuant to Section 13(d) seek to have called any meeting of the stockholders of the Company Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Armistice Affiliates with respect to Voting Securities now or propose any matter to be voted upon hereafter owned by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)them;
(d) directly make or indirectly, encourage, accept be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”otherwise);
(e) directly make any request for a stockholder list or indirectlyfor any other Company materials, solicit proxies books or consents or propose or seek or become a participant in a solicitation (records under Section 220 of the Delaware General Corporation Law, as such terms are defined in Regulation 14A under the Exchange Act)amended, or seek other statutory or regulatory provisions providing for stockholder access to advise stockholder lists or influence any Person, with respect to voting of any securities of the CompanyCompany books and records;
(f) deposit make any securities statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company in a voting trust Company’s Affiliates, or subject any securities of the Company Company’s past, present or future employees, directors, managers or representatives, or take any action that would reasonably be expected to result in any arrangement such statement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)announcement being publicly made;
(g) propose (i) enter into any mergerdiscussions, consolidationnegotiations, business combination, tender agreements or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert understandings with any Third Party to take any action that Armistice is prohibited from taking pursuant to this Section 3;
(h) make any request or submit any proposal to amend or waive the terms of this Agreement, in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate each case which would reasonably be expected to result in a “partnership, limited partnership, syndicate, public announcement of such request or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;proposal; or
(i) request disclose any intention, plan, commitment or propose arrangement to do any of the foregoing. Notwithstanding anything in this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict Armistice from (i) communicating privately with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with stockholders of the Company and others in clauses a manner that does not otherwise violate this Section 3 or Section 4(b), or (aiii) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained has jurisdiction over Armistice. Nothing in this Section 2.1 3 or elsewhere in this Agreement shall preventbe deemed to, restrict, encumber, or limit in any manner: (A) the Investor , restrict any director’s ability to act consistently with his or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its her fiduciary duties as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Cooperation Agreement (Avalo Therapeutics, Inc.), Cooperation Agreement
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date Company Board, CD&R Fund and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchaser Parties shall not, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or knowingly indirectly, and shall use reasonable best efforts to cause their respective Affiliates not to (iii) the date on which the Investor either individually, or in concert with any other Person, or as a “group” (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%as such term is used in Section 13(d)(3) of the Exchange Act)):
(1) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any securities or direct or indirect rights to acquire any equity securities of the Company or any of its Affiliates, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock then issued and outstanding, or substantially all of the Investor (including SK ecoplant and assets or property of the SPV) Company and its Subsidiaries shall not do (but in any of the following, except as approved, invited or waived case excluding (1) any issuance by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)or options, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange warrants or other public offer rights to acquire Common Stock and/or (or the exercise thereof) (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations and (2) the use of cash dividends received by the Purchaser Parties on the Preferred Stock to acquire shares of Common Stock Equivalents;
in open market purchases (c) directly or indirectly, (i) seek but only to have called any meeting the extent of the stockholders of such cash dividends paid by the Company or propose any matter to be voted upon by on the stockholders of the CompanyPreferred Stock), or (ii) propose or nominate for election to the Board any person whose nomination has not been approved extent permitted by a majority of the Board (excluding the Investor Designee, if anyapplicable Law);
(d2) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities than to effectuate the nomination and election of the Company Purchaser Designees pursuant to Section 4.10, make or in any way participate or engage in any “solicitation” of “proxies” (if such offer whether or proposal wouldnot relating to the election or removal of directors), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s stockholders or initiate any arrangement stockholder proposal for action by the Company’s stockholders, or agreement other than with respect to the voting of such securitiesPurchaser Designees, including seek election to or to place a representative on the granting Company Board or seek the removal of any proxy (other than pursuant to this Agreement)director from the Company Board;
(g3) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company and its Subsidiaries, or businesses, purchase of any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate (except as a holder of Common Stock or Preferred Stock) in a merger, consolidation, division, acquisition or exchange of substantially all assets or equity, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act excluding Purchaser Designees, otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board management or the Company (Board or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Subsidiaries;
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses (a) through (i) above; orthis Section 4.13(b);
(k9) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.13(b), provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the foregoing actions referred Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(11) contest the validity of this Section 4.13(b) or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to in (a) through (i) aboveamend, waive or terminate any provision of this Section 4.13(b); provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.12 4.13(a) and the other Transaction Documents) or Transfer (subject to Section 4.9 and the other Transaction Documents) their shares of Preferred Stock or Common Stock, or limit in any manner: otherwise exercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (A2) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.11, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B3) the Investor ability of any Purchaser Designee from performing its duties to act in his or her capacity as a member of the Company Board; , including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Beacon Roofing Supply Inc)
Standstill. During From and after the period (such period, date of this Agreement until the “Standstill Term”) commencing as earlier of the First (x) Closing Date and continuing until the later of or (iy) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board this Agreement is validly terminated pursuant to Section 5Article IX, each of Danube and the Sellers shall not, and (iii) the date on which the Investor (including SK ecoplant shall cause its and SPV) their respective Affiliates not to, and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingtheir respective Representatives acting on their behalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases engage in any “solicitation” of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined in under Regulation 14A under the Exchange Act) or consents to vote (or withhold the vote of) any Amazon Shares, or conduct any binding or nonbinding referendum with respect to any Amazon Shares, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or consents) with respect to any Amazon Shares, or otherwise become a “participant” in a “solicitation” (as such term is defined under Regulation 14A under the Exchange Act) to vote (or withhold the vote of) any Amazon Shares or other capital stock of Amazon;
(b) other than any statements of opinion relating to corporate governance strategy that are not specifically targeted at Amazon or the Amazon Board of Directors, make any public statement with the effect of: (i) controlling, changing or influencing the Amazon Board of Directors, management or policies of Amazon, including any plans or proposals to change the voting standard with respect to director elections, the number of directors or the removal of any directors (other than Shareholder Nominees), or to fill any vacancies on the Amazon Board of Directors (other than Shareholder Nominees), except as contemplated in this Agreement; (ii) causing any change in the capitalization, share repurchase programs and practices or dividend policy of Amazon; (iii) causing any other change in Amazon’s management, business or corporate structure; (iv) seeking to have Amazon waive or make amendments or modifications to the Amazon Governing Documents or other actions that may impede or facilitate the acquisition of control of Amazon by any person; (v) causing a class of securities of Amazon to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (vi) causing a class of securities of Amazon to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(c) (i) seek to advise advise, encourage or influence any Personother Person or assist any third party in so advising, with respect to voting of encouraging or influencing any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement other Person with respect to the voting of such securities, including the granting giving or withholding of any proxy proxy, consent or other authority to vote or in conducting any type of referendum (other than pursuant such encouragement, advice or influence that is consistent with the Amazon Board of Directors’ recommendation in connection with such matter) or (ii) seek to advise, encourage or influence any Person with respect to, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 7.26, and this Agreement)Section 7.27;
(gd) form, join, knowingly encourage the formation of or knowingly engage in discussions relating to the formation of, or participate in a “group” as used in Section 13(d) of the Exchange Act, for the purpose of seeking control, or influencing the control of, Amazon, except for the arrangements expressly set forth in this Agreement;
(e) offer or propose to acquire or agree to acquire (i) any mergeror request permission to do so), consolidationwhether, business combinationdirectly or indirectly, by market purchases, private purchases, tender or exchange offer, purchase through the acquisition of control of another person, by joining or participating in a “group” as used in Section 13(d) of the Company’s Exchange Act, or otherwise, any Amazon Shares or other capital stock of Amazon (or the beneficial ownership thereof) or any securities convertible or exchangeable into or exercisable for any Amazon Shares or other capital stock of Amazon (or beneficial ownership thereof) (including any derivative securities or other rights decoupled from the underlying securities of Amazon), except as permitted by and in accordance with Section 7.26;
(f) separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect or commence any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving Amazon or any Amazon Subsidiary or the assets or businessesbusinesses of Amazon or any Amazon Subsidiary or actively encourage or initiate or support any other third party in any such activity; provided, purchase however, that each of Danube and the Sellers shall be permitted to vote on any securities such transaction in accordance with the terms and conditions of this Agreement; provided, further, for the avoidance of doubt, tendering into any tender offer or exchange offer not commenced by either Danube or the Sellers, or its or their Affiliates, will not violate this Section 7.27(f);
(i) except as expressly provided herein (and in accordance with the terms and conditions hereof), nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any annual or special meeting of the Company or any Derivative, or any similar transaction involving the Company Amazon Shareholders at which Amazon’s directors are to be elected or (ii) (A) present at any recapitalization, restructuring, liquidation annual or other extraordinary transaction with respect to the Company, in each case without the prior written consent special meeting of the Board Amazon Shareholders any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the Amazon Shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another Amazon Shareholder’s call for, any meeting of the Amazon Shareholders, whether or not such a transaction described in clauses (i) and (ii) that would result in a Change of Control, meeting is referred to as a “Business Combination”)permitted by the Amazon Governing Documents;
(h) act encourage, facilitate, support, participate in concert or enter into any negotiations, agreements, arrangements or understandings with any Third Party to take respect to, the taking of any action by any other Person in clauses (a) through (g) above, or, directly connection with the foregoing that is prohibited to be taken by Danube or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the CompanySellers;
(i) (i) publicly seek or publicly request or propose permission to the Board or the Company (or do any of its officersthe foregoing, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly (ii) publicly request to amend or indirectly, any amendment or waiver of waive any provision of Section 7.26 or this Section 2.1 7.27 (including this clause (i)), or (iii) publicly make or publicly seek permission to make any public announcement with respect to any of the foregoing;
(j) make any public announcement regarding, contest the validity or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any enforceability of the matters set forth agreements contained in clauses Section 7.26 or this Section 7.27 or publicly seek a release of the restrictions contained in Section 7.26 or this Section 7.27 (a) through (i) above; orwhether by legal action or otherwise);
(k) enter into discussionsany agreement, negotiations, arrangements arrangement or agreements understanding with any Person relating respect to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals the foregoing; or
(l) knowingly encourage or knowingly facilitate others to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member do any of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Standstill. (a) During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date each AREX Party shall not, and continuing until the later of shall cause its Representatives not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of Fiesta or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Fiesta 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 Fiesta; it being understood that the second (2nd) anniversary of foregoing shall not prohibit the Second Closing Date, AREX Parties or their Affiliates from acquiring Voting Securities within the limitations set forth in Section 5(a)(iii);
(ii) engage in, or assist in the date on which engagement in, any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the Investor ceases conducting of, any type of binding or nonbinding referendum with respect to have any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or from the right to designate holders of, any Voting Securities, or otherwise become a director to “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 Board pursuant to Section 5Securities Exchange Act of 1934, as amended, and with the rules and regulations thereunder (the “Exchange Act”), to vote any securities of Fiesta (including by initiating, encouraging or participating in any “withhold” or similar campaign);
(iii) the date on which the Investor purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including SK ecoplant beneficial ownership) of any securities of Fiesta, any direct or indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of Fiesta; provided that the AREX Parties and SPVtheir Affiliates, in the aggregate, may acquire beneficial ownership of up to 14.9% of the then outstanding Voting Securities;
(iv) and 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 Fiesta;
(v) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of Fiesta or any rights decoupled from the underlying securities held by any of the AREX Parties to any person not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of Fiesta, 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 Subsidiaries beneficially own less than five percent (5.0%) Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock then issued and outstandingoutstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with no known history of activism or known plans to engage in activism;
(vi) 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 Investor (including SK ecoplant and management of Fiesta, including, but not limited to, any plans or proposals to change the SPV) and its Subsidiaries shall not do number or term of directors or to fill any of vacancies on the followingBoard, except as approvedset forth in this Agreement, invited (B) any material change in the capitalization, stock repurchase programs and practices or waived by dividend policy of Fiesta, (C) any other material change in Fiesta’s management, business or corporate structure, (D) seeking to have Fiesta waive or make amendments or modifications to the Company Bylaws or the BoardCertificate of Incorporation (as defined below), or as contemplated other actions that may impede or facilitate the acquisition of control of Fiesta by this Agreement:
any person, (aE) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount causing a class of securities of Fiesta 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 Fiesta to become eligible for termination of registration pursuant to Section 12(g)(4) of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsExchange Act;
(bvii) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the communicate with stockholders of the Company Fiesta or propose any matter others pursuant to be voted upon by the stockholders of the Company, or (iiRule 14a-1(l)(2)(iv) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act;
(viii) engage in any course of conduct with the purpose of causing stockholders of Fiesta to vote contrary to the recommendation of the Board on any matter presented to Fiesta’s stockholders for their vote at any meeting of Fiesta’s stockholders or by written consent;
(ix) act, including by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence Fiesta’s stockholders, management or the Board with respect to Fiesta’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, except as expressly permitted by this Agreement;
(x) call or seek to advise call, or influence request the call of, alone or in concert with others, any Personmeeting of stockholders, with respect to voting of any securities of whether or not such a meeting is permitted by the CompanyBylaws, including a “town hall meeting”;
(fxi) deposit any securities shares of the Company Common Stock or other Voting Securities in a any voting trust or subject any securities shares of the Company Common Stock or other Voting Securities to any arrangement or agreement with respect to the voting of such securities, including the granting any shares of any proxy Common Stock or Voting Securities (other than pursuant to any such voting trust, arrangement or agreement solely among the AREX Parties that is otherwise in accordance with this Agreement);
(gxii) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeseek, or encourage or advise any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) removal of directors with respect to Fiesta or seek, encourage or take any recapitalization, restructuring, liquidation or other extraordinary transaction action with respect to the Company, in each case without the prior written consent election or removal of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)any directors;
(hxiii) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any other way participate in a any “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveVoting Security; provided, however, that nothing herein shall limit the ability of an Affiliate of an AREX Party to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that the AREX Party has formed a group with such Affiliate;
(xiv) demand a copy of Fiesta’s list of stockholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of Delaware providing for stockholder access to books and records (including lists of stockholders) of Fiesta;
(xv) make any request or submit any proposal to amend or waive the terms of this Section 5 other than through non-public communications with Fiesta that would not be reasonably likely to trigger public disclosure obligations for any Party;
(xvi) engage any private investigations firm or other person to investigate any of Fiesta’s directors or officers;
(xvii) disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to 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; or
(xviii) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action the AREX Parties are prohibited from taking pursuant to this Section 5, 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. Notwithstanding anything to the contrary contained in this Section 2.1 5, the AREX Parties shall prevent, restrict, encumber, not be prohibited or limit in any mannerrestricted from: (A) communicating privately with the Investor Board or any officer or director of Fiesta, in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the AREX Parties or their respective Affiliates, Fiesta or its Affiliates from making confidentialor any Third Party, nonpublic proposals subject in any case to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationany confidentiality obligations to Fiesta of any such director or officer and applicable law, rules or regulations; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any AREX Party, provided that a breach by the Investor Designee from performing its duties as a member AREX Parties of this Agreement is not the cause of the Boardapplicable requirement; or (C) privately communicating to any of their potential investors or investors factual information regarding Fiesta, provided such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed.
(b) The provisions of this Section 5 shall not limit in any respect the Investor actions of any director of Fiesta in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to Fiesta and its stockholders and the Company Policies (it being understood and agreed that neither the AREX Parties nor any of their Affiliates shall seek to do indirectly through the New Director (or any Replacement) anything that would be prohibited if done by any of its Affiliates the AREX Parties or their Affiliates). The provisions of this Section 5 shall also not prevent the AREX Parties from exercising freely voting their respective rightsshares of Common Stock (except as otherwise provided in Section 2 hereto).
(c) During the Standstill Period, performing their respective obligations each AREX Party shall refrain from taking any actions which could have the effect of encouraging, assisting or otherwise consummating the transactions contemplated influencing other stockholders of Fiesta or any other persons to engage in actions which, if taken by any AREX Party, would violate this Agreement.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Purchase Agreementprovisions of Sections 1, Joint Venture Agreement2 and 3 of this Agreement shall automatically terminate upon the consummation of a Change of Control transaction agreed to by the Board and involving Fiesta if the acquiring or counter-party to the Change of Control transaction has conditioned the closing of the transaction on the termination of such sections.
(e) During the Standstill Period, each of the AREX Parties shall provide to Fiesta true, accurate and complete copies of any new Investor Agreements (as defined below) and any amendment, modification, extension or the Preferred Distributor Agreementtermination of any Investor Agreements, in each case, in accordance within five (5) business days of the execution or termination, as applicable, thereof.
(f) During the Standstill Period, each of the AREX Parties agrees not to, and to cause its Representatives not to, comment publicly about any director or the Company’s management, policies, strategy, operations, financial results or affairs or any transactions involving Fiesta or any of its subsidiaries, except as expressly permitted by this Agreement.
(g) At any time the AREX Parties cease to have a Schedule 13D filed with the terms hereof SEC and thereofduring the Standstill Period, upon reasonable written notice from Fiesta pursuant to Section 16 hereof, the AREX Parties shall promptly provide Fiesta with information regarding the amount of the securities of Fiesta (a) beneficially owned by each such entity or individual, (b) with respect to which the AREX Parties have (i) any direct or indirect rights or options to acquire or (ii) any economic exposure through any derivative securities or contracts or instruments in any way related to the price of such securities, or (c) with respect to which any AREX Party has hedged its position by selling covered call options. This ownership information provided to Fiesta will be kept strictly confidential, unless required to be disclosed pursuant to applicable laws and regulations, any subpoena, legal process or other legal requirement or in connection with any litigation or similar proceedings in connection with this Agreement.
Appears in 1 contract
Sources: Cooperation Agreement (Fiesta Restaurant Group, Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that other than as may be required by applicable law, order or regulation, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s Affiliates or agents or other persons acting on which the Investor (including SK ecoplant his or its behalf not to, and SPV) and will use commercially reasonable efforts to cause his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall respective Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called any meeting of the stockholders of the Company alone or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by in concert with any other Person individual or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldentity, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationby purchase, tender or offer, exchange offer, purchase of the Company’s assets agreement or businessesbusiness combination or any other manner, purchase beneficial ownership of any securities of the Company or any Derivative, or securities of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Affiliate of the Company, in each case without if, after completion of such acquisition or proposed acquisition, such party would beneficially own, or have the prior written consent right to acquire beneficial ownership of, more than 14.99% of the Board outstanding Common Stock (a transaction described in clauses (ibased on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”the Exchange Act);
(hb) act in concert with submit any Third Party shareholder proposal (pursuant to take Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any action in clauses notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(ac) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 3(d) hereof or acquired in the future (subject to the limitations set forth in Section 6(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the SEC nominees of the Board at any shareholder meeting; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) publicly disparage any member of the Board or management of the Company (including, without limitation, making any critical statements of the Company’s business, strategic direction or compensation practices), provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Standstill Agreement (Information Services Group Inc.)
Standstill. During Each Investor agrees that, for the period (such period, commencing on the “Standstill Term”) commencing as date of this Agreement and ending on the First Closing Date and continuing until the later earliest of (i) the second (2nd) one year anniversary of the Second Closing DateAgreement, (ii) a material breach by the date on Company of its obligations under this Agreement which the Investor ceases to have the right to designate a director to the Board pursuant to Section is not cured within five (5) Business Days after written notice from any Investor, and (iii) the date on which of any Contrary Event or (iv) the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) termination of the shares of Common Stock then issued and outstandingboard observation covenants set forth in Section 2 (the “Standstill Period”), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither it nor any of the followingits controlled Affiliates will, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases it will cause each of Preemptive Right Sharesits controlled Affiliates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek submit any stockholder proposal (pursuant to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Rule 14a-8 promulgated by the stockholders SEC under the Exchange Act or otherwise) or any notice of the Companynomination or other business for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved (including by a majority way of the Board (excluding the Investor DesigneeRule 14a-11 of Regulation 14A), if any)other than as expressly permitted by this Agreement;
(dii) engage in, directly or indirectly, encourage, accept any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or support a tender, exchange written consents) or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or to inspect any books and records of the Company;
(fiv) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) seek 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;
(vi) 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, in each case other than securities of the Company;
(ivii) request other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or 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 (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock 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);
(viii) acquire, announce an intention to acquire, offer or propose to the Board acquire, or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any amendment interests in the Company’s indebtedness or waiver (B) an aggregate amount of any provision more than 9.99% of this Section 2.1 the Company’s outstanding Common Stock (including this clause (i));
(j) make any public announcement regardingwhich shall not include Common Stock issued in connection with a stock split, stock dividend or take any similar corporate action that could require initiated by the Company with respect to make a public announcement regarding, a potential Business Combination or any securities beneficially owned by any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Investors or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovetheir Affiliates); provided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(ix) short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any liens against the Company’s capital stock, except that nothing contained an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(x) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 2.1 shall prevent5; or
(xii) enter into any agreement, restrictarrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, encumber, or limit in any manner: (A) the Investor Group shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of its Affiliates from making confidentialthe Company, nonpublic proposals any stockholder proposal or other matter to the Board for a transaction involving a Business Combination following the public announcement be voted on by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member stockholders of the Board; or (C) Company and the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofreasons therefor.
Appears in 1 contract
Standstill. During the period (such periodThe CATL Parties agree that they will not, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date will cause their respective Affiliates not to, and their Representatives acting on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall their behalf not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any Units or any direct or indirect rights to acquire any Units, any securities convertible into or exchangeable for any Units, or any options or other than Permitted Purchases and purchases derivative securities or contracts or instruments in any way related to the price of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsUnits;
(b) acquire, offer or seek to acquire, agree to acquire or make a tenderproposal to acquire, exchange by purchase or otherwise, any Common Stock or Preferred Stock, any other securities of PublicCo or any of its Affiliates, or any direct or indirect rights to acquire any Common Stock, Preferred Stock or any other securities of PublicCo or any of its Affiliates, any securities convertible into or exchangeable for any such Common Stock, Preferred Stock or any other securities of PublicCo or any of its Affiliates, or any options or other public offer derivative securities or contracts or instruments in any way related to acquire the price of Common Stock, Preferred Stock and/or Common or any other securities of PublicCo or any of its Affiliates if, following any such acquisition or purchase, the CATL Parties’ and their Affiliates’ aggregate PublicCo Economic Ownership Percentage or PublicCo Voting Percentage would exceed 9.8%; provided that, in the event an Earnout Stock EquivalentsPayment is made in accordance with the Merger Agreement, the receipt by the CATL Parties of Earnout Stock pursuant to such Earnout Stock Payment, in and of itself, shall not be a violation of this Section 3.01(b) so long as the CATL Parties comply, and cause their Affiliates to comply, with the obligations set forth in Section 3.03 and Section 3.04 of this Agreement, if applicable;
(c) directly make or indirectly, in any way encourage or participate in any “solicitation” of “proxies” (i) seek to have called any meeting of the stockholders of the Company whether or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the rules of the U.S. Securities and Exchange ActCommission (the “SEC”), to vote, or knowingly seek to advise or influence any Person, with respect to voting of of, any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesPrivateCo, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (PublicCo or any of its officerstheir respective subsidiaries, directorsas applicable, Affiliates employeesor initiate any proposal for action by PrivateCo’s or PublicCo’s Members or stockholders, attorneysas applicable, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment seek election to or waiver to place a representative among the managers of PrivateCo or on the board of directors of PublicCo or seek the removal of any provision manager or director of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, PrivateCo or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) abovePublicCo; or
(kd) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including security holders of PrivateCo or PublicCo, but excluding, for the avoidance of doubt, any CATL Parties) with respect to any of the foregoing actions referred to in (a) through (i) above; providedforegoing, howeverincluding forming, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, joining or limit in any manner: way participating in a “group” (Aas defined in Section 13(d)(3) of the Investor Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with any third party with respect to any securities of PrivateCo or PublicCo or otherwise in connection with any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Investment Agreement (Power & Digital Infrastructure Acquisition II Corp.)
Standstill. During the period Cooperation Period, each ▇▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled Affiliates and its and their respective Representatives acting on their behalf (such periodcollectively with the ▇▇▇▇▇▇▇ Parties, the “Standstill TermRestricted Persons”) commencing as of to not, directly or indirectly, without the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateprior written consent, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(ai) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of, any Voting Securities, or engage in any swap or hedging transactions or other than Permitted Purchases and purchases derivative agreements of Preemptive Right Sharesany nature with respect to any Voting Securities, directly in each case, if such acquisition, offer, agreement or indirectly, acquire transaction would result in the ▇▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities more than 9.9% of the Company Ordinary Shares outstanding at such time;
(a “Derivative”ii) (A) call or seek to call (publicly or otherwise), exceptalone or in concert with others, an extraordinary general meeting of the Company’s shareholders or action by written consent (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any shareholder proposal to the Company, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company; provided that nothing in this Section 2.1(a) shall Agreement will prevent the ▇▇▇▇▇▇▇ Parties or prohibit the Investor their Affiliates from investing taking actions in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsfurtherance of identifying any Replacement New Director;
(biii) make a tender, exchange any request for stock list materials or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders books and records of the Company or propose any of its subsidiaries under any statutory or regulatory provisions providing for shareholder access to books and records;
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act excluding, for the avoidance of doubt, carve-outs relating to solicitations of ten or fewer shareholders) of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal relating to be voted upon the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(v) make any offer or proposal with respect to any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably require public disclosure by the stockholders Company or any of the ▇▇▇▇▇▇▇ Parties (it being understood that (x) the Separation shall not be considered an Extraordinary Transaction and (y) the foregoing shall not restrict the Restricted Persons from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other shareholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(dvi) directly make any public proposal with respect to any change in the capitalization, stock repurchase programs, dividend policy, Board, management or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities corporate structure of the Company or any of its subsidiaries, except for such statements that are consistent with the Press Release (if such offer as defined below) or proposal would, if consummated, result in a Change the provisions of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)this Agreement;
(evii) directly knowingly encourage or indirectlyadvise any Third Party or knowingly assist any Third Party in encouraging or advising any other person (A) with respect to the giving or withholding of any proxy or consent relating to, solicit proxies or consents other authority to vote, any Voting Securities, or propose (B) in conducting any type of referendum relating to the Company (other than such encouragement or seek advice that is consistent with the Board’s recommendation in connection with such matter, or become a participant as otherwise specifically permitted under this Agreement);
(viii) form, join or act in a solicitation (concert with any “group” as such terms are defined in Regulation 14A under Section 13(d)(3) of the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities Voting Securities, other than solely with Affiliates of the Company;▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(fix) deposit any securities of the Company in enter into a voting trust or subject any securities of the Company to any trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting like), in each case other than (A) this Agreement, (B) solely with Affiliates of such securitiesthe ▇▇▇▇▇▇▇ Parties or (C) granting proxies in solicitations approved by the Board;
(x) engage in any short sale or any purchase, including the granting sale or grant of any proxy 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 pursuant any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to this Agreement);
(g) propose (i) or derives any merger, consolidation, business combination, tender significant part of its value from a decline in the market price or exchange offer, purchase value of the Company’s assets or businesses, purchase of any securities of the Company and would, in the aggregate or individually, result in the ▇▇▇▇▇▇▇ Parties ceasing to have a “net long position” in the Company;
(xi) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Company Ordinary Shares held by a Restricted Person to any Derivativethird party;
(xii) institute, solicit or join, as a party, any similar transaction litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (iiincluding derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce any recapitalizationprovision of this Agreement instituted in accordance with and subject to Section 10, restructuring, liquidation or other extraordinary transaction (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the CompanyCompany or its Affiliates against a Restricted Person, in each case without (C) bringing bona fide commercial disputes that do not relate to the prior written consent subject matter of this Agreement (including the Board Press Release), (a transaction described in clauses D) exercising statutory appraisal rights or (iE) and (ii) that would result in a Change of Control, is referred responding to as a “Business Combination”);or complying with validly issued legal process;
(hxiii) act in concert enter into any negotiations, agreements or understandings with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xiv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this clause), in clauses each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal by the Company or any of the Restricted Persons; provided, that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of (ai) through as a nonexclusive remedy for any material breach of this Agreement by the Company (gincluding, without limitation, a failure to appoint the New Director to the Board or the Finance Committee in accordance with Section 1 or a failure to issue the Press Release in accordance with Section 3) aboveupon five (5) business days’ written notice by any of the ▇▇▇▇▇▇▇ Parties to the Company if such breach has not been cured within such notice period, orprovided that the ▇▇▇▇▇▇▇ Parties are 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 Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company during the Cooperation Period or (y) one or more definitive agreements providing for a transaction or series of transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 5% of the outstanding Company Ordinary Shares immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) on an as-converted basis during the Cooperation Period; (iii) the commencement of any tender or exchange offer (by any person other than the ▇▇▇▇▇▇▇ Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or any amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (provided that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer); (iv) such time as the Company determines it is no longer pursuing the Separation, or the Company, its Affiliates or its or their Representatives acting on behalf of the Company, makes any public statement that the Company does not intend to complete the Separation; and (v) the adoption by the Board of any amendment to the Company’s articles of association (the “Articles of Association”), as in effect on the date hereof, that would reasonably be expected to impair the ability of a shareholder to submit nominations of individuals for election to the Board or shareholder proposals in connection with any shareholder meeting to be held after the 2020 Annual Meeting. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 2(c)) will prohibit or restrict any of the Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction (other than the Separation) that is publicly announced by the Company or a Third Party, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (C) 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 lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, or (D) negotiating, evaluating and/or trading, directly or indirectly, form, join or in any way participate in a “partnershipindex fund, limited partnershipexchange traded fund, syndicatebenchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, or other group” as such terms are used in the rules of the SEC with respect to the Company or any but not primarily consist of, securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During the period Cooperation Period, each H▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (such periodand under common control) Affiliates and its and their respective Representatives acting on their behalf (collectively with the H▇▇▇▇▇▇ Parties, the “Standstill TermRestricted Persons”) commencing as to not, directly or indirectly, without the prior written consent, invitation, or authorization of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly effect, or indirectlyoffer or agree to acquire, acquire by purchase or otherwise, or direct any third party in the acquisition of, record or beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have rights or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer options to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders securities of the Company, or (ii) propose engage in any swap or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange hedging transactions or other offer or proposal by derivative agreements of any other Person or group (an “Offeror”) for nature with respect to any securities of the Company (Company, in each case, if such offer acquisition, offer, agreement or proposal wouldtransaction would result, if consummated, result in the H▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of or aggregate economic exposure to more than 9.99% of the Company Common Stock outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a Change of Control meeting of the Company’s shareholders or to act by written consent (or the setting of a record date therefor), such offer (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any shareholder proposal is referred to as an the Company or the Board or any committee thereof, (D) seek, alone or in concert with others the removal of any member of the Board, or (E) conduct a referendum of shareholders of the Company or engage in a “Acquisition Proposal”withhold” or similar campaign; provided that nothing in this clause (ii) (or clause (xv) to the extent applicable to this clause (ii)) will prevent the H▇▇▇▇▇▇ Parties or their Affiliates from taking non-public actions in a confidential manner in furtherance of privately identifying any director candidate in connection with the first annual meeting of shareholders of the Company following the Cooperation Period;
(eiii) directly make any request for any shareholder list or indirectlysimilar materials or other books and records of the Company or any of its subsidiaries, solicit whether pursuant to Section 624 of the New York Business Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(iv) (A) engage in any “solicitation” (as such term is used in the proxy rules of the SEC but including, for the avoidance of doubt, solicitations of ten (10) or fewer shareholders which would otherwise be excluded from the definition of “solicitation” pursuant to Rule 14a-2(b)(2) promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies or consents with respect to the election or propose removal of directors of the Company or seek any other matter or proposal relating to the Company or (B) become a participant in a solicitation “participant” (as such terms are defined term is used in Regulation 14A under the Exchange Actproxy rules of the SEC) in any such solicitation of proxies or consents;
(v) disclose to any third party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a shareholder vote during the Cooperation Period (it being understood that instructing third parties to implement such votes or consents in a ministerial manner in accordance with this Agreement would not be a violation of this provision), except that such disclosures may be made to the extent legally required or seek to advise or influence any Person, with respect to voting of any securities permitted by the prior written consent of the Company;
(fvi) deposit make or submit any proposal for, or offer of (with or without conditions), either alone or in concert with others, any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, restructuring, reorganization, liquidation, separation, dissolution, dilutive financing (including, without limitation, any dilutive “PIPE” capital-raising issuance transaction or any transaction requiring shareholder consent or approval) or other extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably be expected to result in or require public disclosure (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares or otherwise participating in any Extraordinary Transaction, in each case on the same basis as other shareholders of the Company);
(vii) make any proposal, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to (A) any change in the number, term or identity of directors or the filling of any vacancies on the Board other than as provided under Section 1, (B) any change in the capitalization or capital allocation policy of the Company (including, for the avoidance of doubt, capital allocation policies relating to share repurchases or dividends), (C) any other change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Amended Certificate of Incorporation or the Amended and Restated By-Laws of the Company (collectively, the “Organizational Documents”), (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) knowingly encourage or advise any third party or knowingly assist any third party in encouraging or advising any other person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any securities of the Company or (B) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement);
(ix) form, join, knowingly encourage or knowingly participate in or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act, with respect to the Company or any of its securities, other than solely a group consisting solely of the H▇▇▇▇▇▇ Parties and any of their Affiliates;
(x) enter into a voting trust trust, arrangement or agreement, or subject any securities of the Company to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Affiliates of the H▇▇▇▇▇▇ Parties or (C) granting proxies to the Company in solicitations approved by the Board;
(xi) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than 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;
(xii) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Company Common Stock held by a Restricted Person to any third party;
(xiii) make any disclosure, communication, announcement or statement, either publicly or in a manner reasonably likely to result in or require public disclosure, regarding any intent, purpose, place or proposal with respect to the voting Board, the Company, its management, policies or affairs, strategy, operations, financial results, any of such securitiesits securities or assets or this Agreement, except in a manner consistent with the Press Release and Disclosure (each as defined below) and the other provisions of this Agreement;
(xiv) institute, solicit, assist or join, as a party, any litigation, arbitration, or other proceeding against or involving the Company, its Affiliates or any current or former directors or officers of the Company or any of its Affiliates (including derivative actions); provided, however, that for the granting avoidance of doubt, the foregoing shall not prevent any proxy Restricted Person from (other than A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 9, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising any statutory appraisal rights, or (E) responding to or complying with a validly issued legal process;
(xv) enter into any negotiations, agreements (whether written or oral), arrangements, or understandings with any third party to take any action that the Restricted Persons are prohibited from taking pursuant to this AgreementSection 2(b);; or
(gxvi) propose make any request or submit any proposal to amend or waive the terms of this Section 2(b) (i) including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal by the Company or any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets Restricted Persons. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including, but not limited to, the restrictions in this Section 2(b)) will prohibit or businessesrestrict any of the Restricted Persons from (A) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental or regulatory authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by the Restricted Person), purchase (B) 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 lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (C) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company or any Derivative, or any similar transaction involving the Company or (iiD) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect providing its views privately to the Company, in each case without the prior written consent members of the Board (a transaction described in clauses (i) or the Company’s Chief Executive Officer and (ii) financial or legal advisors that have been identified by the Chief Executive Officer to the H▇▇▇▇▇▇ Parties as appropriate contacts, so long as such communication would not reasonably be expected to require or result in a Change any public disclosure of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly such communications or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to content thereof by the Company or any securities of the Restricted Persons. Furthermore, nothing in this Agreement shall prohibit or restrict M▇. ▇▇▇▇▇▇ from exercising his rights and fiduciary duties as a director of the Company in his capacity as a director of the Company;
(i) request , or propose to restrict him from engaging in discussions solely among other members of the Board and/or management, advisors, Representatives or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any agents of the matters set forth Company; provided that any such discussions are limited to communications in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties his capacity as a member of the Board; director and conducted privately in a manner that is not reasonably likely to result in or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofrequire public disclosure.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Each Investor agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek submit any stockholder proposal (pursuant to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Rule 14a-8 promulgated by the stockholders Securities and Exchange Commission (the “SEC”) under the Exchange Act or otherwise) or any notice of the Companynomination or other business for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved (including by a majority way of the Board (excluding the Investor DesigneeRule 14a-11 of Regulation 14A), if any)other than as expressly permitted by this Agreement;
(dii) engage in, directly or indirectly, encourage, accept any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or support a tender, exchange written consents) or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock or grant a proxy with respect to the voting of the Common Stock or other voting securities to any securities person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(fiv) deposit vote for any securities nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(v) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Company Board or a change in the size or composition of the Board;
(vi) disclose publicly, or privately in a voting trust manner that could reasonably be expected to become public, any intention, plan or subject arrangement inconsistent with the foregoing;
(vii) take any securities of action challenging the Company to any arrangement validity or agreement with respect to the voting of such securities, including the granting enforceability of any proxy (other than pursuant to provisions of this AgreementSection 3(a);
(gviii) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of publicly request that the Company amend or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i3(a));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kix) enter into discussionsany agreement, negotiations, arrangements arrangement or agreements with understanding concerning any Person relating to of the foregoing actions referred (other than this Agreement) or encourage or solicit any person to in (a) through (i) aboveundertake any of the foregoing activities; provided, however, that nothing contained in this Section 2.1 3(a) or elsewhere in this Agreement shall prevent, restrict, encumber, or limit in any manner: prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director of the Investor Company, from (1) taking any action or making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to the Chief Executive Officer, the Chief Financial Officer or any other director of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationCompany; (B) the an Investor Designee from performing its duties Director, acting in his or her fiduciary capacity as a member director of the BoardCompany, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to the Chief Executive Officer, the Chief Financial Officer or another other officer or director of the Company; or (CD) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the Investor or any election of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating directors of the transactions contemplated by Company and the other matters referenced in Section 2(a).
(b) As used in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.:
Appears in 1 contract
Sources: Settlement Agreement (LRAD Corp)
Standstill. (a) During any period during which the period Investor Group collectively owns beneficially or of record any Equity Securities of a class or series in excess of the Ownership Limit (without, for the avoidance of doubt, giving effect to any exemption therefrom granted pursuant to the Letter Agreement or any Additional Agreement) applicable to such class or series (such Equity Securities, “Additional Equity Securities”) (any such period, the a “Standstill TermPeriod”) commencing as of the First Closing Date ), neither Investor nor CF shall, and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which Investor and CF shall cause the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, Group and (iii) the date any person acting on which behalf of or in concert with the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesGroup to not, directly or indirectly, without the prior written consent of the Company:
(1) except as permitted pursuant to the terms of the Additional Agreement, if and as applicable, and the Letter Agreement, acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any Equity Securities, or any direct or indirect right to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an Equity Securities,
(2) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring, tender offer, transaction involving a material amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange Company’s assets or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of extraordinary transaction involving the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);its subsidiaries,
(d3) directly or indirectlyinitiate, encourage, accept make, or support a tenderin any way participate or engage in, exchange any “solicitation” of “proxies” or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation consent solicitation” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act)Commission) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of, any Common Shares or other Equity Securities (including, for the avoidance of such securitiesdoubt, including indirectly by means of communication with the granting of any proxy (other than pursuant to this Agreementpress or the media);,
(g4) propose (i) nominate or recommend for nomination a person for election at any merger, consolidation, business combination, tender or exchange offer, purchase shareholder meeting at which directors of the Company’s assets board of trustees (the “Board”) are to be elected,
(5) submit any shareholder proposal for consideration at, or businessesbring any other business before, purchase of any securities shareholder meeting of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);,
(h6) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to any Common Shares or other Equity Securities,
(7) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company,
(8) otherwise act, alone or in concert with others, to seek to control or influence the management, policies, business or corporate structure of the Company,
(9) demand a copy of the Company’s list of shareholders or its other books and records pursuant to any statutory right, whether under the laws of the State of Maryland or any other jurisdiction,
(10) commence, encourage or support any derivative action in the name of the Company, or any class action against the Company or any securities of its officers or trustees in order to, directly or indirectly, effect any of the Company;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 Investor or CF from bringing an action to enforce the provisions of this Agreement),
(i11) request disclose any intention, plan or propose to arrangement prohibited by, or inconsistent with, the Board foregoing, or
(12) advise, assist or the Company (encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with any of its officersthe foregoing.
(b) During any Standstill Period, directors, Affiliates employees, attorneys, accountants, financial advisors neither Investor nor CF shall (and other professional representativesInvestor and CF shall cause the Investor Group to not), directly or indirectly, without the prior written consent of the Company, (i) make any amendment request directly or waiver indirectly, to amend or waive any provision of this Section 3 (including this sentence), (ii) take any action challenging the validity or enforceability of any provision of this Section 2.1 3 (including this clause (i));
(jsentence) or make any public announcement regarding, disclosure in respect thereof or (iii) take any action that could would reasonably be expected to require the Company to make a public announcement regardingregarding the possibility of a business combination, a potential Business Combination merger or any other type of transaction described in this Section 3 with the matters set forth in clauses Company.
(ac) through As used herein, the term “Derivative Security” means (i) above; or
(k) enter into discussionsany subscription, negotiationsoption, arrangements conversion right, warrant, phantom stock right or agreements with other agreement, security or commitment of any Person relating to kind obligating the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates from making confidentialsubsidiaries to issue, nonpublic proposals grant, deliver or sell, or cause to be issued, granted, delivered or sold, any Common Shares or shares of preferred stock of the Board for a transaction involving a Business Combination following Company or any security convertible into, or exchangeable for, any Common Shares or shares of preferred stock of the public announcement Company or (ii) any obligations measured by the Company price or value of any Common Shares or any shares preferred stock of the Company, in the case of each of the foregoing clauses (i) and (ii), whether any of the foregoing is exercisable immediately, only after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) passage of time or upon the Investor Designee from performing its duties as a member satisfaction of the Board; one or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofmore conditions.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date Shareholder Group and continuing until ▇▇▇▇▇▇▇ agrees that, other than as may be required by applicable law, order or regulation, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall behalf not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership of shares of the Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or securities of any similar transaction involving Affiliate of the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses than (i) the acquisition of equity-based compensation pursuant to Section 12 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation and (ii) that would result the direct acquisition by ▇▇▇▇▇▇▇ of up to an aggregate of 10,000 shares of Common Stock in a Change addition to the acquisition or exercise of Control, is referred any equity-based compensation he may receive pursuant to as a “Business Combination”Section 12);
(hb) act in concert with submit any Third Party shareholder proposal (pursuant to take Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any action in clauses notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(ac) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group, ▇▇▇▇▇▇▇ or one or more of their respective Affiliates with respect to the Common Stock or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of the Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act); provided that open market sales of securities through a broker by the Shareholder Group or ▇▇▇▇▇▇▇ which are not actually known by the Shareholder Group or ▇▇▇▇▇▇▇, respectively, to result in any transferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction is approved by a majority of the Board; provided that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇ to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, ▇▇▇▇▇▇▇ or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) publicly disparage any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request or propose to the Board or the Company (engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make enter into any public announcement regardingarrangements, understandings or agreements (whether written or oral) with, or take advise, finance, assist or encourage, any action other person that could require the Company engages, or offers or proposes to make a public announcement regardingengage, a potential Business Combination or in any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(k) enter into discussions, negotiations, arrangements take or agreements cause or induce or assist others to take any action inconsistent with any Person relating of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, prohibit ▇▇▇▇▇▇ or limit ▇▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required in order to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its his fiduciary duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofdirector.
Appears in 1 contract
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. During (a) For a period of XXX following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rightsor any person acting jointly or in concert with the Purchaser) to do or seek to do any of the foregoing; or (vi) advise, performing their respective obligations assist, encourage or otherwise consummating act jointly or in concert with any other person in connection with any of the transactions contemplated foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by this AgreementGCIC US Ltd., the Purchase Agreementmanager of the Vendor, Joint Venture Agreement(the “Manager”) or any of its affiliates, or other than the Preferred Distributor Agreement, in each case, in accordance Vendor and XXX (whose relationship with the Purchaser is governed by a Securities Purchase Agreement of even date herewith (the “XXX Agreement”) and the terms hereof of which agreement shall prevail in the event of any inconsistency or conflict between this Agreement and thereofthe XXX Agreement), unless such fund or product is managed by XXX, the lead portfolio manager of the Vendor.
Appears in 1 contract
Sources: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. During The Shareholder hereby agrees that, for a period of one year from the period (such perioddate hereof, without the prior written consent of the Company, the “Standstill Term”) commencing as Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of the First Closing Date and continuing until the later of its Affiliates not to, directly or indirectly:
(i) the second acquire, publicly announce an intention to acquire, offer or propose to acquire, or agree to acquire (2nd) anniversary except, in any case, by way of the Second Closing Date, (ii) the date on which the Investor ceases stock dividends or other distributions or offerings made available to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of any Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesgenerally), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any equity securities of the Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire beneficial ownership additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives in open market or privately-negotiated transactions as long as the Investor the economic equivalent Shareholder and its Affiliates, collectively, shall not, as a result of ownership such purchase or purchases, beneficially own in excess of an amount of securities 25% of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock;
(bii) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, in any "solicitation" (i) seek to have called any meeting as such term is used in the proxy rules of the stockholders Commission as in effect on the date hereof) of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents (whether or propose not relating to the election or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Actremoval of directors), or seek to advise advise, encourage or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such securities, including term is used in the granting proxy rules of any proxy (other than the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to this Agreement)Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(giii) propose seek, propose, or make any public statement (iwhether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivative, of its Affiliates or solicit or encourage any similar transaction involving the Company other Person to make any such public statement or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)proposal;
(hiv) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to any Voting Securities, other than groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or any securities its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the management, Board of Directors or policies of the Company;
(iviii) request seek, alone or propose to in concert with others, representation on the Board or of Directors of the Company or seek the removal of any member of the Board of Directors;
(ix) make any publicly disclosed proposal or enter into any discussion regarding any of its officersthe foregoing;
(x) publicly make any proposal, directorsstatement or inquiry, Affiliates employeesor publicly disclose any intention, attorneysplan or arrangement (whether written or oral) inconsistent with the foregoing, accountantsor publicly make or disclose any request to amend, financial advisors and other professional representatives), directly waive or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a public announcement regarding, a potential Business Combination Certificate of Incorporation or any By-laws of the matters set forth in clauses (a) through (i) aboveCompany; or
(kxi) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance or assist, any other Person in connection with any Person relating to of the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumberforegoing, or limit make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Standstill. During (a) The Buyer agrees that following the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of twelve (i) the second (2nd) 12)-month anniversary of the Second Closing Date, (ii) without the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesthe Buyer will not, directly or indirectly, and will use reasonable best efforts to cause Fund VII to:
(i) acquire, offer or seek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities or direct or indirect rights to acquire any securities of the Company (a “Derivative”)or any of its Affiliates, exceptany securities convertible into or exchangeable for any such securities, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange any options or other public offer derivative securities or contracts or instruments in any way related to acquire the price of shares of Common Stock, Preferred Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders other capital stock of the Company or propose any matter to be voted upon by the stockholders assets or property of the CompanyCompany or any of its Subsidiaries if, or as a result of any such acquisition, the aggregate beneficial ownership of shares of Common Stock on an as-converted basis of the Buyer and its Affiliates and Portfolio Companies, taken as a whole, would exceed 120% of the sum of (A) their aggregate beneficial ownership of shares of Common Stock as of the date of this Agreement plus (B) the Common Stock issuable upon the conversion of the Series A Preferred Stock as of the Closing;
(ii) propose make or nominate for election participate in or knowingly encourage any “solicitation” of “proxies” (whether or not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to any arrangement or agreement with respect to place a representative on the voting of such securities, including Board or seek the granting removal of any proxy (director from the Board, other than pursuant to this Agreement)in accordance with Section 4.10;
(giii) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any of its Subsidiaries, or any other extraordinary transaction involving the Company or any of its Subsidiaries or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(iv) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, board of directors or policies of the Company or any of its Subsidiaries;
(v) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(vi) advise, assist, encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;
(vii) take any action that would, in effect, require the Company, the Buyer or their respective Affiliates to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 4.5;
(viii) enter into any discussions, negotiations, arrangements or understandings with any third party (including security holders of the Company’s assets ) with respect to any of the foregoing, including forming, joining or businesses, purchase in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any Derivative, or any similar transaction involving of the foregoing;
(ix) request the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orits Representatives, directly or indirectly, form, join to amend or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above4.5; or
(kx) enter into discussionscontest the validity of this Section 4.5 or make, negotiationsinitiate, arrangements take or agreements with participate in any Person relating demand, Action or proposal to amend, waive or terminate any provision of this Section 4.5;
(b) Notwithstanding the foregoing actions referred to in (a) through foregoing:
(i) above; provided, however, that nothing contained in this Section 2.1 4.5 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates Buyer from making confidential, nonpublic proposals a confidential proposal to the Board for a transaction involving a Business Combination following the public announcement so long as any such proposal is made and submitted by the Company after the Second Closing Date that it has entered into Buyer on a definitive agreement with non-publicly disclosed or announced basis (and would not require public disclosure by any Person) (each, a Third Party for a transaction involving a Business Combination; “Confidential Proposal”), (B) the Investor Designee from performing Buyer’s (or its Affiliates’) ability to exercise their voting rights with respect to their shares of Prohibited Stock or Common Stock (subject to Section 4.13), convert shares of Series A Preferred Stock into Common Stock (subject to the Certificate of Designations), participate in rights offerings made by the Company (subject to Section 4.15), receive any dividends or similar distributions with respect to any securities of the Company or effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or (C) the ability of the Buyer Director to vote at meetings of the Board or otherwise exercise his or her legal duties to the Company as a member of the Board or otherwise act in his or her capacity as a member of the Board; and
(ii) this Section 4.5 shall be inoperative and of no force and effect if any other Person or “group” (as defined in Section 13(d)(3) of the Exchange Act) shall (A) enter into an agreement with the Company providing for the acquisition of or (CB) the Investor or any of its Affiliates from exercising their respective rightsmake a bona fide offer, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementthrough a public announcement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, to acquire (in each case, whether by tender offer, exchange offer, merger, acquisition, consolidation or otherwise) (x) more than 50% of the outstanding voting securities of the Company or (y) assets representing more than 50% of the Company’s reported assets (as determined using the asset value of the most recent balance sheet included in accordance with the terms hereof and thereofSEC Documents).
Appears in 1 contract
Sources: Investment Agreement (Knoll Inc)
Standstill. During From the period date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this paragraph 8 terminate as provided herein (such period, the “Standstill TermRestricted Period”), the ▇▇▇▇▇▇▇ Parties shall not, and shall cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the SEC, but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage, advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than Permitted Purchases and purchases such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(c) form, join or participate in any way in any “group” as defined pursuant to Section 13(d) of Preemptive Right Sharesthe Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with other Affiliates of the ▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case if such acquisition or transaction would result in the ▇▇▇▇▇▇▇ Parties, together with their controlling or controlled Affiliates, having beneficial ownership of 10% or more of the Company common stock or economic exposure to 15% or more of the Company common stock;
(e) sell, offer or agree to sell all or substantially all, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives through swap or hedging transactions or otherwise, voting rights decoupled from the Investor the economic equivalent of ownership of an amount of securities underlying common stock of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon held by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company▇▇▇▇▇▇▇ Parties;
(f) deposit make or in any securities of the Company way participate, directly or indirectly, in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiestender offer, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any exchange offer, merger, consolidation, business combination, tender recapitalization, restructuring, liquidation, dissolution or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or its subsidiaries or its or their securities or assets (ii) it being understood that the foregoing shall not restrict the ▇▇▇▇▇▇▇ Parties from tendering shares, receiving payment for shares or otherwise participating in any recapitalization, restructuring, liquidation or such transaction on the same basis as other extraordinary transaction with respect to shareholders of the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or from participating in any way participate in a “partnership, limited partnership, syndicate, such transaction that has been approved by the Board); or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)make, directly or indirectly, any amendment proposal, either alone or waiver in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any such transaction;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the ▇▇▇▇▇▇▇ Parties, with respect to Voting Securities now or hereafter owned by them;
(h) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as specifically permitted in paragraph 2, (ii) seek, alone or in concert with others, the removal of any provision member of this Section 2.1 the Board or (including this clause iii) conduct a referendum of shareholders;
(i))) make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration by the Company’s shareholders;
(j) make any public announcement regarding, request for stock list materials or take any action that could require other books and records of the Company to make a public announcement regarding, a potential Business Combination or any under Section 1508 of the matters set forth in clauses (a) through (i) above; orPennsylvania Business Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(k) enter into discussions, negotiations, arrangements make any proposal or agreements statement with any Person relating respect to the foregoing actions referred to in (a) through (i) aboveany change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company, (iii) the Separation and any other material change in the Company’s management, governance 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 equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 8; provided, however, that nothing contained for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Restricted Person, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in the correspondence between the Company and the Restricted Persons prior to the date hereof, or (iv) 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;
(m) enter into any negotiations, agreements or understandings with any third party to take any action that the ▇▇▇▇▇▇▇ Parties are prohibited from taking pursuant to this paragraph 8; or
(n) make any request or submit any proposal to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal; provided, that the restrictions in this Section 2.1 paragraph 8 shall preventterminate automatically upon the earliest of (i) upon five (5) business days’ prior written notice delivered by ▇▇▇▇▇▇▇ to the Company following a material breach of this Agreement by the Company (including, restrictwithout limitation, encumbera failure to appoint the ▇▇▇▇▇▇▇ Nominees in accordance with paragraph 1) if such breach has not been cured within such notice period, or limit provided that the ▇▇▇▇▇▇▇ Parties are not then in any manner: material breach of this Agreement, (Aii) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into of a definitive agreement with a Third Party for a respect to any transaction involving a Business Combination; that would result in the acquisition by any Person or group of more than 50% of the outstanding shares of Company common stock, (Biii) the Investor Designee from performing its duties as commencement of any tender or exchange offer (by a member Person other than the ▇▇▇▇▇▇▇ Parties or their Affiliates) which, if consummated, would result in the acquisition by any Person or group of more than 50% of the Board; outstanding shares of Company common stock, 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 shareholders reject such tender or exchange offer or (Civ) such time as the Investor Company issues a preliminary proxy statement, definitive proxy statement or other proxy materials in connection with the 2016 Annual Meeting that are inconsistent in any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance material respect with the terms hereof of this Agreement. Notwithstanding the foregoing, this paragraph 8 shall not prevent the ▇▇▇▇▇▇▇ Parties from making public or private statements commenting on the Company’s business and thereofoperations or any Extraordinary Transaction announced by or in respect of the Company.
Appears in 1 contract
Sources: Letter Agreement (Alcoa Inc.)
Standstill. During Until the period (such period, the “applicable Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Termination Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) each Värde Party agrees that such Värde Party and its Subsidiaries beneficially own less than five percent (5.0%) Affiliates who hold any shares of the Preferred Stock, any Common Shares or any shares of Common Stock then issued and outstanding, pursuant to the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingOctober Transaction Agreement will not, except as approved, expressly approved or invited or waived in writing by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases Board of Preemptive Right SharesDirectors, directly or indirectly, through their subsidiaries, Affiliates or any other Persons, or in concert with any Person, or as part of a group that is deemed to be a “person” under Section 13(d)(3) of the Exchange Act:acquire or offer or agree to acquire, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 13d-3 under the Exchange Act), of any shares of Common Stock or seek other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, other than (i) the acquisition of the Exchanged Shares pursuant to advise this Agreement, (ii) the acquisition of the Underlying Shares upon any conversion of the Exchanged Series E Shares or influence upon payment of any Persondividends thereon, any increase of the liquidation preference or convertible amount with respect to the Preferred Stock or any adjustments to the conversion price or conversion ratio or (iv) receiving any shares of securities generally distributed by the Company or an acquirer or target of the Company to holders of Common Stock or Preferred Stock;
(a) make or participate in any solicitation of proxies (as such term is defined in Rule 14a-1 under the Exchange Act) or consents, whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, with respect to any matter from any holder of shares of Common Stock or other voting securities of the Company, or any securities exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, or make any communication exempted from the definition of solicitation by Rule 14a-1(1)(2)(iv) under the Exchange Act (other than communications in the ordinary course of business on a confidential basis among such Värde Party and its Affiliates);
(b) other than through the Company or Board of Directors, call or request any special meeting of holders of Common Stock or other voting securities of the Company or submit or propose the submission of any matter to a vote of the holders of Common Stock or other voting securities of the Company;
(fc) deposit other than through the Company or Board of Directors, effect or agree, offer, seek or propose to effect any securities business combination, merger, tender offer, sale or acquisition of substantially all of the Company in a voting trust assets, restructuring, recapitalization, liquidation, dissolution or subject any securities of other extraordinary transaction involving the Company to or any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)its Subsidiaries;
(gd) otherwise seek or propose (i) any mergerto influence, consolidationcontrol or change the Board of Directors, business combinationmanagement, tender policies, affairs, strategy or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities organizational documents of the Company or any Derivative, or of its Subsidiaries by way of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation public communication or other extraordinary transaction with respect broadly disseminated communication to the Company, in each case without the prior written consent holders of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, Common Stock or other group” as such terms are used in the rules of the SEC with respect to the Company or any voting securities of the Company;
(ie) request enter into any discussions, negotiations, agreements, arrangements or propose to the Board understandings with, or the Company (intentionally assist, advise or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlyencourage, any amendment or waiver of other Person with respect to any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require matter described in the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in foregoing clauses (a) through (ie) aboveof this Section 5.7;
(f) intentionally take any action that would reasonably be expected to cause or require the Company or such Värde Party or any of its Affiliates to make any public announcement or other public disclosure with respect to any of the matters described in this Section 5.7;
(g) intentionally publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 5.7; or
(kh) enter without limitation of Section 5.7(a), acquire or offer or agree to acquire, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), of any shares of Common Stock or other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into discussionsshares of Common Stock or other voting securities of the Company, negotiationsin each case, arrangements that would result in the Värde Parties and their Affiliates collectively owning, beneficially or agreements with any Person relating to otherwise, greater than 50% of the foregoing actions referred to in (a) through outstanding shares of Common Stock, other than (i) abovethe acquisition of the Exchanged Shares pursuant to this Agreement, (ii) the acquisition of the Underlying Shares upon any conversion of the Exchanged Series E Shares or upon payment of any dividends thereon, any increase of the liquidation preference or convertible amount with respect to the Preferred Stock or any adjustments to the conversion price or conversion ratio or (iv) receiving any shares of securities generally distributed by the Company or an acquirer or target of the Company to holders of Common Stock or Preferred Stock; provided, however, that nothing contained in this Section 2.1 shall prevent5.7 will limit (i) any Värde Party’s ability to vote or, restrictsubject to the other restrictions set forth herein and in the Certificates of Designation, encumberthe October Transaction Agreement and the Securities Purchase Agreement, transfer its Securities or limit in any manner: shares of Preferred Stock or Common Stock issued pursuant to the October Transaction Agreement or the Securities Purchase Agreement or otherwise exercise its rights under this Agreement, the Certificates of Designation, the October Transaction Agreement or the Securities Purchase Agreement, (Aii) the Investor or ability of any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement director designated by the Company after Värde Parties pursuant to this Agreement or the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its Certificates of Designation to vote, exercise his or her fiduciary duties as or otherwise fully participate as a member of the Board; Board of Directors, (iii) the ability of the Värde Parties to assert or protect their rights as a stockholder of the Company in the event of the commencement of any bankruptcy or similar proceeding or assignment for the benefit of creditors involving the Company or (Civ) the Investor ability of the Värde Parties to exercise their rights to appoint, remove or cause the resignation of directors pursuant to this Agreement and the Certificates of Designation. In the event that, prior to the Standstill Termination Date applicable to Section 5.7(i), any Värde Party or its Affiliate makes any acquisition of securities of the Company that is permitted under Section 5.7(i) (other an acquisition described in clauses (i)-(iv) of Section 5.7(i)), such Värde Party shall give (or shall cause its Affiliates Affiliate to give) notice to the Company of such acquisition, including the number and type of securities acquired, no later than the first Business Day after the date of such acquisition. Notwithstanding the foregoing, in the case of a Värde Party that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Värde Party’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Värde Party’s assets and barriers are in place to prevent such portfolio managers from exercising their respective rightsobtaining such knowledge, performing their respective obligations or otherwise consummating the transactions contemplated covenant set forth in Section 5.7(a) shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the securities covered by this Agreement, the October Transaction Agreement or the Securities Purchase Agreement; provided, Joint Venture Agreement, or that such assets managed by other managers not subject to such covenant does not exceed 1% of the Preferred Distributor Agreement, Common Stock then issued and outstanding. The parties agree that the covenants and other terms of Section 4.2 of the Securities Purchase Agreement are hereby superseded in each case, in accordance with their entirety from and after the terms hereof and thereofClosing by the foregoing provisions this Section 5.7.
Appears in 1 contract
Standstill. During The Investor agrees that during the period (such periodStandstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingBoard, the Investor (including SK ecoplant will not, directly or indirectly, and the SPV) and will cause its Subsidiaries shall Affiliates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) acquire, offer or seek to acquire, agree to acquire or make a public proposal to acquire, by purchase or otherwise, any securities of the Company, any securities convertible into or exchangeable for any such securities, any options or other than Permitted Purchases and purchases derivative securities or contracts or instruments in any way related to the price of Preemptive Right Shares, directly shares of Company Common Stock or indirectly, acquire any assets or property of the Company or any Subsidiary of the Company that results in the Investor having beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives more than the Investor Maximum Percentage of the economic equivalent of ownership of an amount of securities shares of the Company Common Stock outstanding at such time (a “Derivative”assuming the conversion of the Series B Preferred Stock) (but in any case excluding (i) any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any Investor Director as compensation for their membership on the Board, and (ii) the acquisition of the shares of Company Common Stock issuable upon conversion of the Series B Preferred Stock), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way encourage or participate in a any “partnershipsolicitation” of “proxies” (whether or not relating to the election or removal of directors), limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or call or seek to call a meeting of the Company’s shareholders or initiate any stockholder proposal for action by the Company’s shareholders, or other than with respect to the Investor Director, seek election to or to place a representative on the Board or seek the removal of any director from the Board;
(c) make any public announcement with respect to, or seek or propose any merger or business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company, or any other extraordinary transaction involving the Company, or enter into any discussions, negotiations, arrangements, understandings or agreements with any other Person regarding any of the foregoing; provided, however, that this clause (c) shall not preclude the tender by the Investor or its Affiliates of any securities of the Company into any tender or exchange offer or the vote by the Investor or its Affiliates of any voting securities of the Company with respect to any Fundamental Change in accordance with the recommendation of the Board;
(d) otherwise act, alone or in concert with others, to control or seek to control, advise or knowingly influence, in any manner, management or the board of directors, or the policies of the Company or any of its Subsidiaries (other than the Investor Director acting in his or her capacity as a member of the Board or voting at a meeting of the Company’s shareholders);
(e) acquire, offer or seek to acquire, by purchase or otherwise, any debt securities of the Company;
(f) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(g) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;
(h) take any action that would or would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.07;
(i) enter into any discussions, negotiations, communications, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, the Investor Parties) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party (excluding, for the avoidance of doubt, the Investor Parties) with respect to the Company or any securities of the CompanyCompany or otherwise in connection with any of the foregoing;
(ij) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)Representatives, directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above5.07; or
(k) enter into discussionscontest the validity of this Section 5.07 or make, negotiationsinitiate, arrangements take or agreements with participate in any Person relating demand, action (legal or otherwise) or proposal to the foregoing actions referred to in (a) through (i) aboveamend, waive or terminate any provision of this Section 5.07; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.07 will limit in any manner: (A1) the Investor Parties’ ability to vote, Transfer (subject to Section 5.08), convert (in accordance with the limitations in the Statement With Respect to Shares) or any of otherwise exercise rights under its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; Common Stock or Series B Preferred Stock or (B2) the ability of any Investor Designee from performing Director to vote or otherwise exercise its fiduciary duties or otherwise act in its capacity as a member of the Board; or (C) . Notwithstanding anything to the contrary in this Section 5.07, the Investor or any of and its Affiliates from exercising their respective rightsmay at any time communicate privately with the Company’s directors, performing their respective obligations officers or otherwise consummating advisors or submit to the transactions contemplated by this AgreementBoard one or more confidential proposals or offers for a transaction (including a transaction that, the Purchase Agreementif consummated, Joint Venture Agreementwould result in a Fundamental Change), or the Preferred Distributor Agreementso long as, in each case, in accordance with such communications and submissions are not intended to, and would not reasonably be expected to, require any public disclosure by the terms hereof and thereofCompany of such communications or submissions, as applicable.
Appears in 1 contract
Sources: Investment Agreement (Ii-Vi Inc)
Standstill. During Each Investor Party agrees with the period (such periodCompany, the “Standstill Term”) commencing as of the First Closing Date severally and continuing not jointly, that, until the later of (i) the second (2nd) anniversary of the Second Closing applicable Standstill Expiration Date, (ii) without the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, such Investor Party shall not, directly or as contemplated by this Agreementindirectly, and shall cause its Affiliates not to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire or make a proposal to acquire, whether by private or open market purchase, a block trade, a tender or exchange offer, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or of, or any instrument that gives economic interest in, any right to direct the Investor the economic equivalent of ownership of an amount of voting or disposition of, or any other right with respect to any equity or equity-linked securities of the Company (a “Derivative”)or direct or indirect rights to acquire any equity securities or equity-linked of the Company, exceptany securities convertible into or exchangeable for any such equity securities of the Company, nothing 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 shares of Common Stock; provided, however, that restriction set forth in this Section 2.1(a5.05(a) shall prevent or prohibit apply to a transaction only to the extent that, after giving effect to such transaction, such Investor from investing Party and its Affiliates would beneficially own, in a fund with respect to which the Investor does not have or share decisionaggregate, greater than 19.9% of the then-making authority over investment or divestment decisionsoutstanding Common Stock;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) make or in any way knowingly encourage or participate in any “solicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), to vote, or knowingly seek to have called advise, encourage or influence any meeting of the stockholders Person with respect to voting of, any voting securities of the Company or propose any matter of its Subsidiaries or any securities convertible or exchangeable into or exercisable for any such securities, (ii) request, call or seek to be voted upon by call (or, for the stockholders avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), (iii) initiate or be the proponent of any stockholder proposal for action by the Company’s stockholders, (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, except as expressly set forth herein or in the Certificate of Designations, (v) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any director from the Board (other than, in the case of the Investor Parties, the Investor Designee), or (iivi) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation any contested “solicitation” (as such terms are defined in Regulation 14A or used under the Exchange Act), or seek to advise or influence any Person, ) for the election of directors with respect to voting of any securities of the Company;
(fc) deposit make any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement public announcement with respect to the voting of such securitiesto, including the granting of any proxy or offer, seek, propose or indicate an interest in (other than pursuant to this Agreementin each case with or without conditions);
(g) propose (i) , either alone or in concert with others, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the Company’s assets assets, properties or businesses, purchase of any securities of the Company or any DerivativeSubsidiary of the Company, or any similar other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing (it being understood that the foregoing shall not restrict any Investor Parties from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company);
(d) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, board of directors or business, of the Company or any of its Subsidiaries, including (i) controlling or changing the Board or management of the Company, including any plans or proposals to declassify the Board or to change the number or term of directors or to fill any vacancies on the Board (except as permitted herein or in the Certificate of Designations with respect to the Investor Designee), (ii) any recapitalizationmaterial change in the capitalization, restructuringcapital allocation policy or dividend policy of the Company, liquidation or other extraordinary transaction with respect (iii) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, in each case without or other actions that may impede or facilitate the prior written consent acquisition of control of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Company by any person;
(he) act in concert make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any Third Party of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to take do, or to advise, assist, knowingly encourage or direct any action in clauses (a) through other Person to do, any of the foregoing;
(g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses this Section 5.05;
(ah) through enter into any agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Party) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing;
(i) aboverequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.05; orprovided 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 5.05, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(kj) enter into discussionscontest the validity of this Section 5.05 or make, negotiationsinitiate, arrangements take or agreements with participate in any Person relating demand, Action (legal or otherwise) or proposal to the foregoing actions referred to in (a) through (i) aboveamend, waive or terminate any provision of this Section 5.05; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.05 will (1) limit in any manner: Investor Party’s ability to (A) vote, Transfer or Hedge (subject to this Agreement, including Section 5.06), (B) convert shares of Series A Preferred Stock into Common Stock, (C) exercise the Investor or any of its Affiliates from making confidentialWarrant, nonpublic proposals (D) acquire Preemptive Securities pursuant to Section 5.13, (E) privately make and submit to the Board for any proposal that is intended by such Investor Party to be made and submitted on a transaction involving a Business Combination following the non-publicly disclosed or announced basis (and would not reasonably be expect to require public announcement disclosure by any Person), (F) participate in rights offerings made by the Company after to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Second Closing Date Company held by such Investor Party, (G) tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer (subject to Section 5.06), or (H) effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights under its Common Stock or Series A Preferred Stock that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; are not the subject of this Section 5.05, (B2) limit the acquisition by any Investor Director of any equity securities of the Company pursuant to (x) the grant or vesting of any equity compensation awards granted by the Company to any Investor Designee from performing its Director, or (y) the exercise of any stock options, restricted stock units, or similar awards relating to any equity securities granted by the Company to any Investor Director, or (3) limit the ability of the Investor Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board; . For purposes of this Section 5.05, the “Standstill Expiration Date” shall mean the date upon which (i) any Person shall have entered into a binding definitive agreement that has been approved the Board to acquire more than 50% of the outstanding voting securities of the Company, (ii) any Person commences an exchange or tender offer which, if consummated, would result in such Person’s acquisition of beneficial ownership of more than 50% of the outstanding voting securities of the Company and the Board does not recommend against such transaction within ten (10) Business Days of the commencement thereof or (Ciii) any Person shall have entered into a binding definitive agreement that has been approved by the Board to undertake a transaction that would constitute a Change of Control (as defined in the Certificate of Designations) other than those contemplated in clause (i) and (ii) of this paragraph. Following the Closing and until the occurrence of the Fall-Away of Investor Board Rights, the Company shall invite the Investor or to participate in any process commenced by the Company that could reasonably be expected to lead to (x) any transaction of its Affiliates from exercising their respective rightsthe type described in clause (i) and (ii) of the immediately preceding paragraph (to the extent that the Company has prior notice of such events) and/or (y) a Change of Control (as defined in the Certificate of Designations) (collectively, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementan “Acquisition Proposal”).The Company shall provide in reasonable detail notice to Investor of any such process promptly following commencement thereof, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, and shall negotiate and cooperate in each case, in accordance good faith with the terms hereof Investor to enable the Investor’s participation in said process, subject to applicable Laws. The Company will promptly provide the Investor reasonable access to all facilities, personnel, management, documents and thereofother information relating to the Company, and its business, products and technology to enable the Investor to conduct a due diligence investigation customary in a merger and acquisition context, which such access in either case will be no less extensive than that provided to any other party that has made or is contemplating making or has been invited by the Company to make an Acquisition Proposal.
Appears in 1 contract
Standstill. During From the period date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this paragraph 11 terminate pursuant to the terms of this Agreement (such period, the “Standstill TermRestricted Period”), Investor shall not, and shall cause its Affiliates and Associates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities absent prior express written invitation or authorization on behalf of the Company Board:
a) engage in any “solicitation” (a as such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “DerivativeExchange Act”), except, nothing in this Section 2.1(a) shall prevent of proxies or prohibit the Investor from investing in a fund consents with respect to which the Investor does not have election or share decision-making authority over investment removal of directors or divestment decisionsany other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(b) make a tenderknowingly encourage, exchange advise or knowingly influence any Third Party or knowingly assist any Third Party in so knowingly encouraging, advising or knowingly influencing any Third Party with respect to the giving or withholding of any proxy, consent or other public offer authority to acquire Common Stock and/or Common Stock Equivalentsvote (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(c) form, join or act in concert with any partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act and the rules promulgated thereunder, with any entity or person unaffiliated with Investor and with respect to any Voting Securities;
d) make or in any way participate, directly or indirectly, (i) seek to have called in any meeting tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of the stockholders a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or propose any matter of its subsidiaries or its or their securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict Investor or any of its Affiliates or Associates from tendering (or failing to be voted upon by 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 (ii) propose or nominate for election to the Board from participating in any person whose nomination such transaction that has not been approved by a majority of the Board (excluding the Investor Designee, if anyBoard);
(di) directly seek, alone or indirectlyin concert with others, encourageelection or appointment to, accept or support representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board (except as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board, or (iii) request that, or knowingly encourage any Person to request that, the Company call any meeting of the Company’s stockholders, (iv) present any matter at any meeting of the Company’s stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a tenderreferendum of the Company’s stockholders; provided, exchange 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 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”) so long as such actions do not create a public disclosure obligation for Investor or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Investor’s normal practices in similar circumstances;
f) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
g) make any request for stock list materials or other offer or proposal by any other Person or group (an “Offeror”) for securities books and records of the Company under the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
h) except as set forth herein, make any public proposal with respect to (if such offer i) any change in the number or proposal wouldterm of directors or the filling of any vacancies on the Board, if consummated, result (ii) any material change in a Change of Control the capitalization of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iiii) any merger, consolidation, business combination, tender or exchange offer, purchase of other material change in the Company’s assets management, business or businesses, purchase of any securities of the Company or any Derivativecorporate structure, or any similar transaction involving the Company or (iiiv) any recapitalizationwaiver, restructuring, liquidation amendment or other extraordinary transaction with respect modification to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (’s Charter or Bylaws;
i) and (ii) that would result in a Change of Controlenter into any negotiations, is referred to as a “Business Combination”);
(h) act in concert agreements or understandings with any Third Party to take any action in clauses (athat Investor is prohibited from taking pursuant to this paragraph 11; j) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)make, directly or indirectly, any amendment proposal, either alone or waiver of any provision in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement inconsistent with the provisions of this Section 2.1 (including this clause (i));paragraph 11; or
(jk) make any public announcement regardingrequest or submit any public proposal, directly or take any action that could indirectly, to amend or waive the terms of this Agreement, in each case which would reasonably be expected to require the Company to make a public announcement regardingof such request or proposal; provided, a potential Business Combination or any that the restrictions in this paragraph 11 shall terminate automatically upon the earliest of the matters set forth in clauses (a) through (i) above; or
the Expiration Date, (kii) enter into discussionsthe 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, negotiations(iii) the commencement of any tender or exchange offer (by a person other than Investor or its Affiliates) which, arrangements if consummated, would constitute an Extraordinary Transaction that would directly or agreements 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, or (iv) as a non-exclusive remedy for any material breach of this Agreement by the Company (including, without limitation, a failure to appoint any New Director and otherwise constitute the Board in accordance with paragraph 1 or a failure to form the Strategic Asset Review Committee and otherwise constitute such committee in accordance with paragraph 2 and adopt the Strategic Asset Review Committee Charter, a failure to appoint a replacement in accordance with paragraph 5, or a failure to issue the Company Press Release in accordance with paragraph 10), upon ten (10) business days’ prior written notice by Investor following any 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. During the Restricted Period, the Company shall not adopt and shall not propose the adoption of any amendment to the Company’s 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 Person relating to future annual meeting of stockholders of the foregoing actions referred to in (a) through (i) above; providedCompany, however, that and nothing contained in this Section 2.1 paragraph 11 shall preventprevent Investor from (i) privately communicating with the Company or the Board, restrictand (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. Nothing in this Agreement shall prevent (a) the Company from responding to such Investor statements described in clause (ii) of the preceding sentence, encumbersubject to the obligations of the Parties under paragraph 12, or limit in any manner: (Ab) the Company or Investor 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 Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement or by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rightsAffiliates, performing their respective obligations or otherwise consummating as applicable). Notwithstanding anything to the transactions contemplated by contrary in this Agreement, nothing in this paragraph 11 shall prohibit or restrict a New Director from exercising his or her rights and fiduciary duties as a director of the Purchase AgreementCompany or restrict his or her discussions solely among other members of the Board and/or management, Joint Venture Agreementadvisors, representatives or agents of the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 1 contract
Standstill. During The PL Capital Parties each agree that during the period Standstill Period (such periodas hereinafter defined), the “Standstill Term”) commencing PL Capital Parties and their affiliates or associates (as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director defined in Rule 12b-2 promulgated pursuant to the Board pursuant to Section 5Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall they will not do any of the following, except as approved, invited assist or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities manner, without prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board of Directors of Alliance Bancorp:
(bi) make a acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift, tender, exchange or other public offer otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire Common Stock and/or Common Stock Equivalentsacquire, or securities convertible into or exchangeable for (collectively, an “Acquisition”), any securities of Alliance Bancorp, such that as a result of such of such Acquisition, the PL Capital Parties would maintain beneficial ownership in excess of 9.99% of the outstanding shares of Alliance Bancorp common stock;
(cii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (ias such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to have called advise, encourage or influence in any meeting manner whatsoever any person with respect to the voting of any voting securities of Alliance Bancorp;
(iii) form, join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the stockholders Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of Alliance Bancorp or otherwise in any manner agree, attempt, seek or propose to deposit any securities of Alliance Bancorp in any voting trust or similar arrangement, or subject any securities of Alliance Bancorp to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the Company group involving the PL Capital Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement);
(iv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (a) any of the assets, tangible and intangible, direct or indirect, of Alliance Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of Alliance Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any securities or assets of Alliance Bancorp;
(vi) otherwise act, alone or in concert with others, propose or to seek to offer to Alliance Bancorp or any of its shareholders any business combination, restructuring, recapitalization or similar transaction to or with Alliance Bancorp or the Bank or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of Alliance Bancorp or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of Alliance Bancorp, nominate any person as a director of Alliance Bancorp who is not nominated by the then incumbent directors (provided that if there is a vacancy on the Alliance Bancorp Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the Alliance Bancorp Board of Directors or the Nominating and Governance Committee of the Alliance Bancorp Board of Directors for nominees to the Board of Directors pursuant to the nomination policy adopted by the Board of Directors), or propose any matter to be voted upon by the stockholders shareholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Alliance Bancorp;
(dvii) directly or indirectly, encouragesell, accept transfer or support a tender, exchange otherwise dispose of any interest in the shares of Alliance Bancorp common stock beneficially owned by the PL Capital Parties to any person that would reasonably be understood to be the beneficial owner of 5% or other offer or proposal by any other Person or group (an “Offeror”) for securities more of the Company (if such offer or proposal would, if consummated, result in a Change outstanding shares of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Alliance Bancorp common stock;
(eviii) directly except in connection with the enforcement of this Agreement, initiate or indirectlyparticipate, solicit proxies by encouragement or consents otherwise, in any litigation against Alliance Bancorp or propose the Bank or seek their respective directors or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)officers, or seek to advise or influence in any Personderivative litigation on behalf of Alliance Bancorp, with respect to voting of any securities of the Company;except for testimony which may be required by law; or
(fix) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others to the voting of such securitiesdo, including the granting of or advise, assist or encourage others to do, any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in prohibited under clauses (i) through (viii) of this Paragraph 2, publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any Alliance Bancorp annual meeting of shareholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of Alliance Bancorp they or any of them beneficially own in favor of the nominees for election or reelection as director of Alliance Bancorp selected by the Board of Directors of Alliance Bancorp and agree otherwise to support such director candidates, and (ii2) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities other proposal submitted by any Alliance Bancorp shareholder to a vote of the Company;
(i) request or propose Alliance Bancorp shareholders, to vote all of the Alliance Bancorp shares they beneficially own in accordance with the recommendation of the Alliance Bancorp Board of Directors with respect to any such shareholder proposal. Notwithstanding anything in this Agreement to the Board contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇ or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Substitute in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties his capacity as a member of Alliance Bancorp’s Board of Directors or the BoardBank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (C2) the Investor or any ability of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement, Agreement directly with the Purchase Agreement, Joint Venture AgreementPresident and Chief Executive Officer of Alliance Bancorp, or upon invitation, with other members of management or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofboard of directors of Alliance Bancorp.
Appears in 1 contract
Sources: Standstill Agreement (Alliance Bancorp, Inc. Of Pennsylvania)
Standstill. During Until completion of the period 2023 Annual Meeting of the Stockholders of the Company (such period, the “Standstill TermAnnual Meeting”) commencing as of the First Closing Date ), no Purchaser, severally and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot jointly with any other Purchaser, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do or any of its Affiliates that are directly or indirectly controlled by such Purchaser (the following“Controlled Affiliates”), except as approveddirectly or indirectly, invited or waived by the Company or the Board, or as contemplated by this Agreementshall:
(a) other than Permitted Purchases and purchases solicit proxies or written consents of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership holders of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (or become a “Derivative”)participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any other Person in any “solicitation” of any proxy, except, nothing in this Section 2.1(aconsent or other authority (as such terms are defined under the Exchange Act) shall prevent or prohibit the Investor from investing in a fund with respect to which any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Board of Directors’ recommendation in connection with such matter) (for the avoidance of doubt, excluding such activities among members of the Investor does not have and their Controlled Affiliates); or share decision-making (ii) encourage any other Person to solicit or withhold any proxy, consent or other authority over investment with respect to any shares of Common Stock or divestment decisionsotherwise advise, encourage or influence any other Person with respect to voting any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Board of Directors’ recommendation in connection with such matter);
(b) make form or join in a tenderpartnership, exchange limited partnership, syndicate or other public offer group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to acquire the Common Stock and/or Common Stock Equivalents(for the avoidance of doubt, excluding any group composed solely of members of the Investor and their Controlled Affiliates) or otherwise support or participate in any effort by any third party with respect to the matters set forth in clause (a) above;
(c) directly or indirectly, (i) seek to have called present at any meeting Special Meeting of the stockholders Stockholders of the Company (each, a “Special Meeting”), or through action by written consent, any proposal for consideration for action by stockholders or seek the removal of any member of the Board of Directors or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate nominee for election to the Board any person whose nomination has not been approved by a majority of Directors or seek representation on the Board (excluding the Investor Designee, if any)of Directors;
(d) directly or indirectlygrant any proxy, encourage, accept or support a tender, exchange consent or other offer authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any Special Meeting) or proposal by deposit any other Person or group (an “Offeror”) for securities shares of the Company (if such offer or proposal would, if consummated, result Common Stock in a Change voting trust or subject them to a voting agreement or other arrangement of Control of similar effect with respect to any Special Meeting or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the Company, such offer or proposal is referred to as an “Acquisition Proposal”like);
(e) directly without the prior approval of a majority of the members of the Board of Directors, separately or indirectlyin conjunction with any other Person or entity in which it is or proposes to be either a principal, solicit proxies partner or consents or financing source, publicly propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)participate in, effect or seek to advise effect, any extraordinary corporate transaction, tender offer or influence exchange offer, merger, acquisition, reorganization, restructuring, recapitalization, change in the Company’s dividend policy, change in the Company’s Certificate of Incorporation or the Company’s Bylaws, business combination involving the Company or a material amount of the assets or businesses of the Company or any Person, with respect to voting action which would result in a class of any securities of the CompanyCompany being delisted from a Trading Market or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association or becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act or encourage any other person in any such activity;
(f) deposit disclose any securities of intention, plan or arrangement inconsistent with the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)foregoing;
(g) propose (i) instigate, encourage, join, act in concert with or assist any merger, consolidation, business combination, tender or exchange offer, purchase third party to do any of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);foregoing; or
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained events described in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof4.16.
Appears in 1 contract
Standstill. During the period Cooperation Period, each ▇▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (such periodand under common control) Affiliates and its and their respective Representatives acting on their behalf (collectively with the ▇▇▇▇▇▇▇ Parties, the “Standstill TermRestricted Persons”) commencing as to not, directly or indirectly, without the prior written consent, invitation, or authorization of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of Preemptive Right Shares, directly record or indirectly, acquire beneficial ownership of or economic exposure to any Voting Securities (as defined below) or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the ▇▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of, or aggregate economic exposure to, more than 9.9%, of the Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company Company’s stockholders or act by written consent in lieu of a meeting (or the setting of a “Derivative”record date therefor), except(B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any stockholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of stockholders of the Company; provided that nothing in this Agreement will prevent the ▇▇▇▇▇▇▇ Parties or their Affiliates from taking actions in furtherance of identifying any Replacement New Director pursuant to Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions1(c), as applicable;
(biii) make a tender, exchange any request for stock list materials or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders books and records of the Company or propose any of its subsidiaries under Section 220 of the Delaware General Corporation Law or any other statutory or regulatory provisions providing for stockholder access to books and records;
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act (as defined below)) of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(v) make or submit to the Company or any of its Affiliates any proposal for, or offer of (with or without conditions), either alone or in concert with others, any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably be voted upon expected to require public disclosure by the Company or any of the Restricted Persons (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(dvi) directly make any public proposal with respect to (A) any change in the number or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities identity of directors of the Company or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement, (if such offer B) any change in the capitalization, capital allocation policy or proposal would, if consummated, result in a Change of Control dividend policy of the Company, such offer (C) any other change to the Board or proposal is referred the Company’s management, or corporate or governance structure, (D) any waiver, amendment or modification to as an “Acquisition Proposal”)the Company’s Amended and Restated Certificate of Incorporation or Amended and Restated By-Laws, (E) causing the Common Stock to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing the Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(evii) directly knowingly encourage or indirectlyadvise any Third Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the giving or withholding of any proxy relating to, solicit proxies or consents other authority to vote, any Voting Securities, or propose (B) conducting any type of referendum relating to the Company, other than such encouragement or seek advice that is consistent with the Board’s recommendation in connection with such matter, or become a participant as otherwise specifically permitted under this Agreement;
(viii) form, join or act in a solicitation (concert with any “group” as such terms are defined in Regulation 14A under Section 13(d)(3) of the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities Voting Securities, other than solely with Affiliates of the Company▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(fix) deposit any securities of the Company in enter into a voting trust or subject any securities of the Company to any trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting of such securitieslike), including the granting of any proxy (in each case other than pursuant to (A) this Agreement)Agreement (B) solely with Affiliates of the ▇▇▇▇▇▇▇ Parties or (C) granting proxies in solicitations approved by the Board;
(gx) propose engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (iincluding any put or call option or “swap” transaction) with respect to any mergersecurity(other than any index fund, consolidationexchange traded fund, business combinationbenchmark fund or broad basket of securities) that includes, tender relates to, or exchange offer, purchase derives any significant part of its value from a decline in the market price or value of the Company’s assets or businesses, purchase of any securities of the Company and would, in the aggregate or individually, result in the ▇▇▇▇▇▇▇ Parties ceasing to have a “net long position” in the Company;
(xi) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any DerivativeThird Party;
(xii) institute, solicit or join as a party any similar transaction litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (iiincluding derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any recapitalizationprovision of this Agreement instituted in accordance with and subject to Section 9, restructuring, liquidation or other extraordinary transaction (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the CompanyCompany or its Affiliates against a Restricted Person, in each case without (C) bringing bona fide commercial disputes that do not relate to the prior written consent subject matter of the Board this Agreement, (a transaction described in clauses D) exercising statutory appraisal rights or (iE) and (ii) that would result in a Change of Control, is referred responding to as a “Business Combination”)or complying with validly issued legal process;
(hxiii) act in concert enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xiv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in clauses each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal; provided that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of the following: (aA) through any material breach of this Agreement by the Company (gincluding, without limitation, a failure to appoint the New Directors to the Board in accordance with Section 1(a) aboveor to issue the Press Release in accordance with Section 3) upon five (5) business days’ written notice by any of the ▇▇▇▇▇▇▇ Parties to the Company if such breach has not been cured within such notice period, orprovided that the ▇▇▇▇▇▇▇ Parties are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (B) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company, (y) one or more definitive agreements providing for the acquisition by the Company or its subsidiaries of one or more businesses or assets (excluding, for the avoidance of doubt, acquisitions of raw materials, equipment or facilities in ordinary course business operations) having an aggregate value exceeding 25% of the market capitalization of the Company during the Cooperation Period or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the Common Stock (including on an as-converted basis, and including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be counted toward this clause (z)); and (C) the commencement of any tender or exchange offer (by any person or group other than the ▇▇▇▇▇▇▇ Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 2(c)) will prohibit or restrict any of the Restricted Persons from (I) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or such Third Party, (II) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (III) 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 lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (IV) negotiating, evaluating and/or trading, directly or indirectly, form, join or in any way participate in a “partnershipindex fund, limited partnershipexchange traded fund, syndicatebenchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, or other group” as such terms are used in the rules but not primarily consist of, securities of the SEC with respect to the Company or any securities of the Company;
(iV) request or propose providing its views privately to the Board or the Company Company’s Chief Executive Officer, Chief Financial Officer, Chief Legal Officer, or members of the investor relations team made available for communications involving broad-based groups of investors (including through participation in investor meetings and/or conferences) regarding any matter, or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or privately requesting a waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any Agreement, as long as such private communications or requests would not reasonably be expected to require public announcement regarding, disclosure of such communications or take any action that could require requests by the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofRestricted Persons.
Appears in 1 contract
Standstill. (a) During the period Standstill Period, Basswood agrees that, unless specifically requested in writing by the Company or expressly permitted by this Agreement, Basswood and each of its respective Affiliates or Associates (such periodcollectively (with Basswood) and individually, the “Standstill TermBasswood Affiliates”) commencing as of the First Closing Date and continuing until the later of their representatives, shall not, directly or indirectly (including through any Basswood Director), in any manner, alone or in concert with others:
(i) the second (2nd) anniversary acquire, offer, seek or propose to acquire, or agree to acquire, by purchase or otherwise, beneficial ownership of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the additional shares of Common Stock then issued and outstandingif, the Investor (including SK ecoplant and the SPV) after giving effect to such acquisition, Basswood and its Subsidiaries shall not do any clients and their respective Affiliates would collectively beneficially own more than 19.9% of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership outstanding shares of Common Stock and/or Stock; provided, that, nothing herein will require Common Stock Equivalents and/or any instrument to be sold to the extent that gives Basswood and its clients and their respective Affiliates, collectively, exceed the Investor ownership limit under this clause (i) as the economic equivalent result of ownership a share repurchase or similar Company action that reduces the number of an amount outstanding shares of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsCommon Stock;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeemake, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a in, any “partnership, limited partnership, syndicate, or other groupsolicitation” of “proxies” to vote (as such terms are used in the rules of the SEC Securities and Exchange Commission (“SEC”)) or seek to advise or influence any person (other than private communications with any Basswood Affiliate) with respect to the Company voting of (including engaging in any withhold or no vote campaign) any securities of the CompanyCommon Stock;
(iiii) request separately or propose in conjunction with any other person, submit a proposal for or offer of (with or without conditions) any Extraordinary Transaction. The term “Extraordinary Transaction” shall be defined to mean any of the Board or following involving the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly subsidiaries or indirectly, any amendment its or waiver their securities or a material amount of any provision the assets or businesses of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidentialsubsidiaries: any tender offer or exchange offer, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement merger, acquisition, business combination, reorganization, restructuring, recapitalization, spin-off, split-off, licensing, sale or acquisition of, or joint venture or other partnership with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member respect to, material assets, sale or purchase of the Board; securities, liquidation or (C) the Investor dissolution, or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.similar transaction;
Appears in 1 contract
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date Company Board, CD&R Fund and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchaser Parties shall not, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or knowingly indirectly, and shall cause their respective controlled Affiliates not to (iii) the date on which the Investor either individually, or in concert with any other Person, or as a “group” (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%as such term is used in Section 13(d)(3) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:Exchange Act)):
(a1) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of Equity Securities or direct or indirect rights to acquire any Equity Securities, loans or debt securities of the Company (a “Derivative”)or any of its Affiliates, exceptany securities convertible into or exchangeable for any such Equity Securities, nothing in this Section 2.1(a) shall prevent loans or prohibit the Investor from investing in a fund with respect to which the Investor does not have debt securities or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange any options or other public offer derivative securities or contracts or instruments derived by reference to acquire Common Stock and/or Common Stock Equivalents;
(c) directly the price of Equity Securities, loans or indirectly, (i) seek to have called any meeting of the stockholders debt securities of the Company or propose its Subsidiaries or substantially all of the assets or property of the Company and its Subsidiaries (but in any matter to be voted upon case excluding any issuance by the stockholders Company of Common Shares or options, warrants or other rights to acquire Common Shares (or the exercise thereof) (A) to any Purchaser Designees as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Shares pursuant to the provisions of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority Certificate of the Board (excluding the Investor Designee, if anyDesignations);
(d2) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities than to effectuate the nomination and election of the Company Purchaser Designees pursuant to Section 4.11, make or in any way participate or engage in any “solicitation” of “proxies,” “consents” or “authorizations” (if such offer whether or proposal wouldnot relating to the election or removal of directors), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s shareholders (or action by written consent in lieu thereof) or initiate any arrangement shareholder proposal for action by the Company’s shareholders, or agreement other than with respect to the voting of such securities, including the granting of any proxy (other than Purchaser Designees pursuant to this Agreement), seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(g3) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company and its Subsidiaries, or businesses, purchase of any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective Equity Securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate (except as a holder of Common Shares or Preferred Shares) in a merger, consolidation, division, acquisition or exchange of any Equity Securities of the Company or any Subsidiary thereof or any material portion of the assets thereof, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act excluding the Purchaser Designees, otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnershipmanagement or the Company Board, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyits Subsidiaries;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses (a) through (i) above; orthis Section 4.13(b);
(k9) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including Equity Security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any Equity Securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.13(b); provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the foregoing actions referred Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(11) contest the validity of this Section 4.13(b) or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 4.13(b);
(12) deposit any Equity Securities owned thereby (whether Beneficial Ownership or record ownership) in any voting trust or subject any such Equity Securities to any arrangement or agreement (aother than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) through with respect to the voting of any such Equity Securities, other than any such voting trust, arrangement or agreement solely among CD&R Fund, the Purchaser Parties and their respective Affiliates and granting proxies in solicitations approved by the Board;
(i13) aboveengage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that derives any significant part of its value from a decline in the market price or value of any of the securities or loans of the Company or its Subsidiaries; or
(14) knowingly advise, assist, or encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.13(a) and the other Transaction Documents) or Transfer (subject to Section 4.10 and the other Transaction Documents) their Preferred Shares or Common Shares, or limit otherwise exercise rights in any manner: respect of their Preferred Shares pursuant to the Certificate of Designations, (A2) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.12, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B3) the Investor Designee from performing its duties ability of any Purchaser Designees to act in his or her capacity as a member of the Company Board; , including his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 1 contract
Standstill. During The Investor agrees that until the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until date that is the later of (i) the second (2nd) anniversary of the Second Closing DateDecember 31, 2024 and (ii) 90 days after the date first day on which no Investor Designee serves on the Board and the Investor ceases to have has no rights (or has irrevocably waived its right) under Section 5.09 (except for Section 5.09(f)), without the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of the shares of Common Stock then issued and outstandingBoard, the Investor (including SK ecoplant will not, directly or indirectly, and the SPV) will cause its Affiliates and its Subsidiaries shall and their respective principals, directors, officers, employees and agents and other Representatives acting on its behalf, acting alone or in concert with others, not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any equity securities or direct or indirect rights to acquire any equity securities of the Company, any securities convertible into or exchangeable for any such equity securities, any options or other than Permitted Purchases and purchases derivative securities or contracts or instruments in any way related to the price of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (solely to the extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the economic equivalent of ownership of aggregate (A) prior to Subsequent Common Closing, an amount greater than nine and ninety-nine-one-hundredths percent (9.99%) of securities the capital stock of the Company that is entitled to vote generally in any election of directors of the board of directors of the Company; (B) prior to the Requisite Stockholder Approval (as defined in the Certificate of Designations) being obtained, an amount greater than nineteen and ninety-nine-one-hundredths percent (19.99%) of the capital stock of the Company that is entitled to vote generally in any election of directors of the board of directors of the Company; and (C) at all times following the Subsequent Common Closing and the Requisite Stockholder Approval being obtained, an amount greater than twenty-four percent (24)% of the capital stock of the Company that is entitled to vote generally in any election of directors of the board of directors of the Company (a “Derivative”)which calculation shall, exceptin each case, nothing include the notional or other number of shares of Common Stock specified in this Section 2.1(a) shall prevent or prohibit the documentation for any Contract to which any of the Investor from investing in a fund with respect Parties are party which is designed to which produce economic benefits and risks to any of the Investor does not have or share decision-making authority over investment or divestment decisionsParties that correspond substantially to the ownership by the Investor Parties of shares of Common Stock, except in the case of any such Contract which is settled only in cash));
(b) make a tender, exchange or other any public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyannouncement with respect to, or (ii) offer, seek, propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board indicate an interest in (excluding the Investor Designee, if any);
(d) directly in each case with or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Actwithout conditions), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the Company’s assets assets, properties or businesses, purchase of any securities of the Company or any DerivativeSubsidiary of the Company, or any similar other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (iiwhether written or oral) with any recapitalizationother Person regarding any of the foregoing;
(c) make any proposal or statement of inquiry or disclose any intention, restructuringplan or arrangement inconsistent with any of the foregoing;
(d) advise, liquidation assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other extraordinary transaction with respect Person to do, any of the Companyforegoing;
(e) take any action that would, in each case without effect, require the prior written consent Company to make a public announcement regarding the possibility of a transaction or any of the Board (a transaction events described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”this Section 5.07(a);
(hf) act in concert enter into any agreements, arrangements or understandings with any Third Party third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Party) with respect to take any action in clauses (a) through (g) aboveof the foregoing, orincluding, directly or indirectlyforming, form, join joining or in any way participate participating in a “partnership, limited partnership, syndicate, or other group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing.
(g) make or in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any securities of its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director from the Board;
(h) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(i) request contest the validity of this Section 5.07 or propose make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to the Board amend, waive or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));5.07; or
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsa voting trust, negotiationsvoting agreement or similar voting arrangement with respect to any shares of Common Stock or Series A Preferred Stock (in each case, arrangements or agreements other than in accordance with any Person relating to the foregoing actions referred to in (a) through (i) above; Section 5.10). provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.07 will limit in any manner: (A1) the Investor Parties’ ability to vote (subject to Section 5.10), transfer or convert (subject to Section 6 (Right of the Holders to Convert) of the Certificate of Designations) any of its Affiliates from making confidentialSeries A Preferred Stock or Common Stock, nonpublic proposals privately make and submit to the Board for any proposal that is intended by such Investor Party to be made and submitted on a transaction involving a Business Combination following the non-publicly disclosed or announced basis (and would not reasonably be expect to require public announcement disclosure by any Person), participate in rights offerings made by the Company after to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Second Closing Date that it has entered Company held by such Investor Party, tender shares of Common Stock or Series A Preferred Stock into a definitive agreement with a Third Party for a transaction involving a Business Combination; any tender or exchange offer, effect an adjustment to the Conversion Rate pursuant to of the Certificate of Designations) or otherwise exercise rights under its Common Stock or Series A Preferred Stock or (B2) the ability of any Investor Designee from performing its duties Director to act in his or her capacity as a member of the Board; Board including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 1 contract
Standstill. During the period The Stockholder shall not, nor shall any of its directors, officers, employees, agents, advisors or other representatives (such period, the “Standstill TermRepresentatives”) commencing as on its behalf, without the prior written consent of the First Closing Date and continuing until the later Exar or its Board of Directors (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate or a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:duly empowered committee thereof):
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesduring the Lock-Up Period:
(1) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of Exar or any Subsidiary thereof, or of any successor to or person in control of Exar, or any assets (other than assets in the ordinary course of business) of Exar or any Subsidiary or division thereof or of any such successor or controlling person; provided, however, that the Stockholder may acquire voting securities of Exar, or any Subsidiary thereof, or of any successor to or person in control of Exar so long as its aggregate beneficial ownership of Common Stock and/or Common Stock Equivalents and/or Exar, such Subsidiary or such Person does not at any instrument that gives time during the Investor the economic equivalent of ownership of an amount of securities Lock-Up Period exceed 19% of the Company Exar voting securities (on a “Derivative”fully diluted basis assuming conversion or exercise of all outstanding Exar Derivative Securities); or
(2) or request Exar or any of its Representatives, exceptdirectly or indirectly, nothing in to amend or waive any provision of this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;5(a); and
(b) make during the period commencing on the Closing Date and ending on the date that is the two (2)-year anniversary of the Effective Time of the Merger:
(1) subject to the Stockholder’s right to designate a tenderrepresentative for nomination by the Board of Directors for election as a director pursuant to Section 7(b) below, exchange or other public offer nominate any person to acquire Common Stock and/or Common Stock Equivalentsthe Board of Directors of Exar;
(c2) call or attempt to call a special meeting of the stockholder of Exar;
(3) make, or in any way participate, directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securitiesany voting securities of Exar (including, including the granting without limitation, making any public statement in favor or support of any proxy (other than pursuant to this Agreementproposal not approved by the Board of Directors of Exar);
(g4) propose make any public announcement with respect to, or submit a proposal for, or offer of (iwith or without conditions) any merger, consolidation, business combination, extraordinary transaction (including a tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company ) involving Exar or any Derivative, of its securities or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(h5) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) of the SEC Exchange Act, in connection with respect to the Company or any securities of the Companyforegoing;
(i6) request or propose to the Board or the Company (Exar or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)Representatives, directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 (including this clause (i5(b));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During Voce agrees that, during the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Period it will not, and (iii) the date it will cause its respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases engage in any solicitation of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation (“solicitation” as such terms are defined in Regulation 14A under the Exchange ActAct of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), or seek to advise or influence any Personin each case, with respect to voting of any securities of the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(b) submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company;
(fd) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than with other members of Voce or one or more of its Affiliates or to the extent such a group may be deemed to result with the Company or any of their respective Affiliates as a result of this Agreement;
(e) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction (as defined below) that is not approved by a majority of the Board;
(f) call, seek to call, or to request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the stockholders of the Company;
(g) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than Voce and its Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 9.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by Voce which are not actually known by Voce to result in any transferee acquiring beneficial ownership of more than 9.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require Voce to vote in favor of a Sale Transaction that was approved by the Board;
(h) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by Voce or its Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit (x) Plants from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required in order to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its his fiduciary duties as a member director of the Board; Company or (Cy) solely with respect to any Sale Transaction that has been approved by a majority of the Investor Board and has been announced by the Company, Voce from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any of its Affiliates from exercising their respective rights, performing their respective obligations shares or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofproxies.
Appears in 1 contract
Sources: Board Appointment Agreement (Destination Maternity Corp)
Standstill. During Executive agrees that, for a period of two years from the period date of this Agreement, neither Executive, Spouse nor any of Executive's or Spouse's affiliates will (such periodor will cause or assist others to), without the “Standstill Term”) commencing as prior written consent of the First Closing Date and continuing until the later Company or its Board of Directors: (i) the second (2nd) anniversary of the Second Closing Dateacquire, (ii) the date on which the Investor ceases offer to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardacquire, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesagree to acquire, directly or indirectly, by purchase or otherwise, more than 1.0% of the voting securities or direct or indirect rights to acquire beneficial ownership more than 1.0% of Common Stock and/or Common Stock Equivalents and/or the voting securities of and issued by, the Company or direct or indirect any instrument that gives the Investor the economic equivalent parent or subsidiary thereof, or of ownership of an amount of securities any Successor (as defined below), or any assets of the Company or any parent or direct or indirect subsidiary or division thereof or of any such Successor, which may be outstanding on the date hereof or subsequently issued during such two year period; (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bii) make a tenderor any in way participate in, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting "solicitation" of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation "proxies" (as such terms are defined used in Regulation 14A under the rules of the Securities Exchange Act), Commission) to vote or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company (or any Derivativeparent or direct or indirect subsidiary thereof); (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any similar extraordinary transaction involving the Company (or any parent or direct or indirect subsidiary thereof) or its (iior their) any recapitalization, restructuring, liquidation securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board assets; (a transaction described in clauses (iiv) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” " (as such terms are used defined in the rules Section l3(d)(3) of the SEC Securities Exchange Act of 1934, as amended) in connection with respect to the Company or any securities of the Company;
foregoing; (iv) request otherwise act, alone or propose in concert with others, to seek control or influence the management, Board of Directors or policies of the Company (or any parent or direct or indirect subsidiary thereof); (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other persons in connection with any of the foregoing, or (viii) contact, discuss with, make comments to or otherwise provide information to, any analysts, major stockholders, reporters or other members of the media respecting the Company (or its parents or direct or indirect subsidiaries), or its (or their) plans. Executive and Spouse also agree during such period not to request the Company or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 paragraph (including this clause (i));
(jsentence) make any public announcement regarding, or take any action that could which might require the Company to make a public announcement regardingregarding the possibility of an extraordinary transaction involving the Company or its securities or assets. Notwithstanding the foregoing, Executive and Spouse shall be entitled to receive and own all securities distributed in respect of, or issued in exchange for, any voting securities owned by them which were not acquired in violation of this Agreement. As used herein, "Successor" shall mean any entity which in a potential Business Combination or any transaction succeeds to substantially all of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Company's assets or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any which acquires substantially all of its Affiliates from making confidentialstock so long as, nonpublic proposals to the Board for in either case, holders of a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Board; or (C) Company's voting securities immediately prior to such transaction beneficially own a majority of the Investor or any voting securities of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofsuch entity immediately thereafter.
Appears in 1 contract
Standstill. During the his term of employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent holder of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any voting securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kiii) enter into discussionsbe employed by any person that, negotiationsdirectly or through its affiliates, engages in any of the foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or other awards, plans and arrangements and any other Common Stock received or agreements otherwise acquired by the Executive in connection with any Person relating or as a result of the Executive’s employment with the Company or service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Executive, the Executive will no longer be subject to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any limitations of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSections 7(d).
Appears in 1 contract
Standstill. During Each of Fiat and General Motors agrees that from and after the date of this Agreement, for so long as each of them owns, directly or indirectly, any shares of Fiat Auto Holdings Common Stock and for a period (such periodof ten years thereafter, it will not and it will cause its Subsidiaries not to, without the “Standstill Term”) commencing as prior written consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementother party:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company (a “Derivative”)other party or any Subsidiary thereof, exceptor of any successor to or person in control of the other party, nothing in this Section 2.1(a) shall prevent or prohibit any assets of the Investor from investing in a fund with respect to which the Investor does not have other party or share decision-making authority over investment any Subsidiary or divestment decisionsdivision thereof or of any such successor or controlling person;
(b) make a tenderor in any way participate, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek in any "solicitation" of "proxies" to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securities, including any voting securities of the granting of any proxy (other than pursuant to this Agreement)party;
(gc) propose (i) make any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativepublic announcement with respect to, or submit a proposal for or offer of (with or without conditions), any similar extraordinary transaction involving the Company other party or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(hd) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership"group" as defined in Regulation 13D-G under the Exchange Act, limited partnership, syndicate, or other group” as such terms are used in the rules connection with any of the SEC with respect to the Company or any securities of the Company;foregoing; or
(ie) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)party, directly or indirectly, any amendment to amend or waiver of waive any provision of this paragraph. The foregoing standstill provisions in this Section 2.1 (including this clause (i));
(j) make 6.08 shall not apply to any acquisition, voting, public announcement regardingor proposal with respect to the voting securities or assets of Fiat Auto Holdings or any Subsidiary thereof, or take any action that could require participation in any "group" (within the Company to make a public announcement regardingmeaning of Regulation 13D-G under the Exchange Act) in connection therewith, a potential Business Combination or any request to amend or waive this sentence after the securities of such entity are listed on a securities exchange or otherwise publicly quoted for trading. Notwithstanding the foregoing, in the event that upon the sale of Fiat Auto Holdings Common Stock or Fiat Auto Common Stock to General Motors pursuant to Section 8.02 or 8.03 Fiat requests payment of the matters set forth purchase price in clauses (a) through (i) above; or
(k) enter into discussionsshares of General Motors Common Stock but receives all or a portion of the purchase price in cash, negotiations, arrangements or agreements with any Person relating Fiat may use such cash to the foregoing actions referred to in (a) through (i) aboveacquire additional shares of General Motors Common Stock; provided, however, that nothing contained in this Section 2.1 after giving effect to any such acquisition, Fiat and its Subsidiaries shall prevent, restrict, encumber, or limit in any manner: not beneficially own (Awithin the meaning of Regulation 13D-G under the Exchange Act) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member more than 10% of the Board; or (C) the Investor or any outstanding shares of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofGeneral Motors Common Stock.
Appears in 1 contract
Standstill. During the period (such period, commencing on the “Standstill Term”) commencing as of the First Closing Date and continuing until ending on the later earliest of (i) the second three (2nd3) year anniversary of the Second Closing Date, (ii) the date on the Company publicly announces its intent to initiate or consummate any merger, consolidation, acquisition, scheme, business combination or other extraordinary transaction in which the Investor ceases to have the right to designate Company or any of its Subsidiaries is a director to the Board pursuant to Section 5constituent entity or party, and (iii) the date on which submission or announcement of the Investor intent to make any bona fide offer or attempt by any third party to acquire all or a substantial portion of the securities or assets of the Company through any means, process or structure and (including SK ecoplant and SPViv) and the termination of the Collaboration Agreement (the “Standstill Period”), the Purchaser agrees that, without the prior approval of the Company, the Purchaser will not, directly or indirectly, through its Subsidiaries beneficially own less than five percent Controlled Affiliates or as a “group” (5.0%within the meaning of Section 13(d)(3) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPVExchange Act) and its Subsidiaries shall not do with any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementother Person:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly offer to purchase, or indirectly, agree to purchase or otherwise acquire beneficial ownership of any Common Stock and/or Shares or Common Stock Equivalents and/or any instrument that gives Share Equivalents, provided that, after the Investor issuance by the economic equivalent Company of Common Shares as a result of an equity financing, the Purchaser may purchase Common Shares in routine trading transactions in an amount up to such number of shares as would result in the Purchaser maintaining its percentage ownership of an amount the issued and outstanding Common Shares as of securities of the Company (a “Derivative”), except, nothing immediately prior to such issuance; [*] Certain information in this Section 2.1(a) shall prevent or prohibit document has been omitted and filed separately with the Investor from investing in a fund Securities and Exchange Commission. Confidential treatment has been requested with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;omitted portions.
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companymake, or (ii) propose or nominate for election in any way participate in, any solicitation of proxies to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company or any Derivativeof its Subsidiaries, or seek or propose to influence, advise, change or control the management, supervisory board, management board, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(c) make a proposal for, or offer of (with or without conditions) any acquisition of or extraordinary transaction involving the Company or any of its Subsidiaries or any of their respective securities or assets;
(d) effect or seek to effect (including, without limitation, by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate (except as a holder of Common Shares) in a merger, consolidation, division, acquisition or exchange of substantially all assets or equity, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(he) act enter into any discussions, negotiations, arrangements or understandings with or form a group with, any third party in concert connection with any Third Party such third party’s taking, planning to take, or seeking to take any action in of the actions prohibited by clauses (a) through (gd) aboveof this Section 5.2 or otherwise act, or, directly or indirectly, form, join alone or in any way participate in a “partnershipconcert with others, limited partnership, syndicate, to seek to control or other group” as such terms are used in influence the rules of supervisory and management boards or the SEC with respect to the Company management or any securities policies of the Company;, including its Subsidiaries; or
(if) request publicly disclose any intention, plan or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or arrangement regarding any of the matters set forth in actions prohibited by clauses (a) through (ie) aboveof this Section 5.2; or
(k) enter into discussionsprovided that, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through restrictions of this Section 5.2 shall not (i) aboverestrict private, non-public discussions regarding a transaction otherwise prohibited by this Section 5.2 with the supervisory board or management board of the Company; (ii) prohibit the Purchaser or its subsidiaries from acquiring securities of, or from entering into any merger or other business combination with, another Person that beneficially owns securities of the Company; provided, however, that nothing contained the purpose of entering into such transaction is not to circumvent the terms in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board5.2; or (Ciii) limit the Investor or any ability of the Purchaser to exercise its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofrights under Section 5.12.
Appears in 1 contract
Standstill. During The Purchaser agrees that during the period (such periodApplicable Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, the Purchaser will not, directly or as contemplated by this Agreementindirectly, and will cause its Affiliates not to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities or direct or indirect rights to acquire any equity securities of the Company or any of its Affiliates, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) to any Purchaser Director (A) as compensation for their membership on the Board or (B) as a “Derivative”result of a dividend payment on, or the conversion of, the Series A Preferred Stock pursuant to the provisions of the Certificate of Designations), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;.
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
in any way encourage or participate in any “solicitation” of “proxies” (c) directly whether or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in a voting trust or subject any securities of its Subsidiaries (excluding any votes required for the approval of the Company Transactions), or call or seek to call a meeting of the Company’s stockholders or initiate any arrangement stockholder proposal for action by the Company’s stockholders, or agreement other than with respect to the voting of such securitiesPurchaser Director, including seek election to or to place a representative on the granting Board or seek the removal of any proxy (other than pursuant to this Agreement)director from the Board;
(gc) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets of the Company and its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing; provided that the Purchaser may make confidential proposals to the Board of Directors of the Company regarding mergers, consolidations or other business combinations with the Company or a purchase of all or substantially all of the Company’s assets so long as such proposals would not reasonably be expected to require any public disclosure by the Company;
(d) otherwise act, alone or businessesin concert with others, purchase to seek to control or influence, in any manner, management or the board of any securities directors of the Company or any Derivative, or any similar transaction involving of its Subsidiaries (other than in the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent capacity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”Purchaser Director);
(he) act in concert make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any Third Party of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to take do, or to advise, assist, encourage or direct any action in clauses (a) through other Person to do, any of the foregoing;
(g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would, in effect, require the Company to make a public announcement regarding, a potential Business Combination or with respect to any of the matters set forth in clauses (a) through (i) above; orforegoing;
(kh) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, the Purchaser or any Specified Affiliate) with respect to any of the foregoing actions referred foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in (a) through connection with any of the foregoing;
(i) aboverequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided that this clause shall not prohibit the Purchaser or any Specified Affiliate from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(j) contest the validity of this Section 5.07 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.07; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.07 will limit in any manner: (A1) the Investor ability of Purchaser or any Specified Affiliates to vote (subject to Section 5.11), Transfer (subject to Section 5.08), convert (subject to Section 6 of the Certificate of Designations) or otherwise exercise rights under its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; Common Stock or Series A Preferred Stock or (B2) the Investor Designee from performing its ability of any Purchaser Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board; or (C) . Notwithstanding the Investor or any expiration of the Applicable Standstill Period with respect to Section 5.07(a), until the Fall-Away of Purchaser Board Rights, the Purchaser and its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating shall not acquire beneficial ownership (calculated pursuant to Rule 13d-3 of the transactions contemplated by this Agreement, Securities Exchange Act) of more than 31.5% of the Purchase Agreement, Joint Venture Agreement, or outstanding shares of Common Stock of the Preferred Distributor Agreement, in each case, in accordance with Company without the terms hereof and thereofprior approval of the Board.
Appears in 1 contract
Standstill. During Servier agrees that neither it nor any Affiliate or other of its representatives, acting alone or as part of any group, shall directly or indirectly until [***], without the period prior written approval of Pharmacyclics' Board of Directors:
13.13.1 acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (such periodincluding, but not limited to, beneficial ownership as defined in Rule 13d 3 under the “Standstill Term”) commencing as Securities and Exchange Act of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%1934) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited assets or waived by the Company businesses of Pharmacyclics or the Boardof any securities of Pharmacyclics, or as contemplated by this Agreement:any rights or options to acquire any such ownership (including from a third party);
(a) other than Permitted Purchases and purchases of Preemptive Right Shares13.13.2 make, or in any way participate, directly or indirectly, acquire beneficial ownership in any "solicitation" of Common Stock and/or Common Stock Equivalents and/or any instrument that gives "proxies" (as such terms are used in the Investor the economic equivalent of ownership of an amount of securities proxy rules of the Company (a “Derivative”)Securities and Exchange Commission) to vote, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund seek to advise or influence any person with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsvoting of any voting securities of Pharmacyclics;
13.13.3 form, join or in any way participate in, a "group" (bwithin the meaning of Section 13(d)(3) make a tender, exchange or other public offer of the Securities Exchange Act of 1934) with respect to acquire Common Stock and/or Common Stock Equivalentsany voting securities of Pharmacyclics;
(c) directly 13.13.4 otherwise act, whether alone or indirectlyin concert with others, (i) to seek to have called propose to Pharmacyclics any meeting merger, business combination, restructuring, recapitalization or similar transaction to or with Pharmacyclics or otherwise act, whether alone or in concert with others, to seek to control, change or influence the management, Board of Directors or policies of Pharmacyclics, or nominate any person as a director of Pharmacyclics who is not nominated by the stockholders of the Company then incumbent directors, or propose any matter to be voted upon by the stockholders of Pharmacyclics; *** Certain information in this document has been omitted and filed separately with the Company, or (ii) propose or nominate for election to the Board any person whose nomination Securities and Exchange Commission. Confidential treatment has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement requested with respect to the voting of such securitiesomitted portions.
13.13.5 solicit, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativenegotiate with, or provide any similar transaction involving the Company or (ii) information to, any recapitalization, restructuring, liquidation or other extraordinary transaction person with respect to the Companya merger, in each case without the prior written consent exchange offer or liquidation of Pharmacyclics or any other acquisition of Pharmacyclics, any acquisition or voting securities of or all or any portion of the Board (a transaction described in clauses (i) and (ii) that would result in a Change assets of Control, is referred to as a “Business Combination”)Pharmacyclics or any other similar transaction;
(h) act in concert 13.13.6 announce an intention to, or enter into any discussion, negotiations, arrangements or understandings with any Third Party to take third party with respect to, any action of the foregoing; or
13.13.7 disclose any intention, plan or arrangement inconsistent with the foregoing, or advise, assist or encourage any other persons in clauses (a) through (g) aboveconnection with any of the foregoing. In addition, orServier hereby agrees that during the term of this Agreement, it shall not request Pharmacyclics, directly or indirectly, form, join to amend or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 13.13, (including this clause (i));
(jsentence.) make If at any public announcement regarding, or take any action that could require time during the Company to make a public announcement regarding, a potential Business Combination or any term of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Agreement Servier or any of its Affiliates from making confidential, nonpublic proposals to the Board for representatives are approached by any third party concerning Servier's participation in a transaction involving a Business Combination following the public announcement assets or business of Pharmacyclics or securities issued by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member Pharmacyclics, Servier will promptly inform Pharmacyclics of the Board; or (C) nature of such transaction and the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofparties thereto.
Appears in 1 contract
Standstill. During Until 18 months after the period Closing Date (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of ), except (i) with the second (2nd) anniversary prior written consent of the Second Closing Date, Company or (ii) the date on which the Investor ceases to have the right to designate a director by way of stock dividends or other distributions made to the Board pursuant Company’s stockholders generally, the Purchaser will not, and will not encourage, direct, assist or cause any of its Affiliates, employees, representatives or agents to, directly or indirectly, subject to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement6.2:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire or agree, directly offer, seek or indirectlypropose to acquire ownership (including, acquire but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities voting stock of the Company (or securities convertible or exchangeable into or exercisable for any voting stock of the Company if, as a “Derivative”)result of such acquisition, except, nothing the Purchaser in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate would own more than 19.9% of the Investor does not have or share decision-making authority over investment or divestment decisionsissued and outstanding voting stock of the Company at the time of such acquisition;
(b) make cause to be acquired ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any voting stock of the Company or securities convertible or exchangeable into or exercisable for any voting stock of the Company if, as a tenderresult of such acquisition, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsthe Person acquiring ownership together with the Purchaser and its Affiliates in the aggregate, would own more than 19.9% of the issued and outstanding voting stock of the Company at the time of such acquisition;
(c) directly make, or indirectlyin any way participate in, any “solicitation” of “proxies” (ias such terms are defined under Regulation 14A of the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to voting stock of the Company;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting stock of the Company (other than a group consisting solely of Purchaser and its Affiliates with respect to not more than 19.9% of the issued and outstanding voting stock of the Company);
(e) arrange, or in any way participate in, any financing for the purchase of any voting stock of the Company or securities convertible or exchangeable into or exercisable for any voting stock of the Company (other than purchases by the Purchaser and its Affiliates with respect to not more than 19.9% of the issued and outstanding voting stock of the Company);
(f) otherwise act, whether alone or in concert with others, to seek to propose under Rule 14a-8 of the Exchange Act to the Company or any of its stockholders any merger, business combination, restructuring, recapitalization or similar transaction to or with the Company or induce or attempt to induce any other person to initiate any stockholder proposal;
(g) call or seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon or, unless requested by the stockholders Company in writing, execute any written consent in lieu of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority meeting of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities holders of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities stock of the Company;
(fh) deposit any securities seek election or seek to place a representative on the Board of Directors of the Company in a voting trust (the “Board of Directors”) or subject any securities of seek the Company to any arrangement or agreement with respect to the voting of such securities, including the granting removal of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent member of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, Directors; or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into any discussions, negotiations, arrangements or agreements understandings with or assist any Person relating third party with respect to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Standstill. During (a) Except as otherwise set forth in or permitted by this Agreement, from the period date of this Agreement until the expiration of the Standstill Period (such periodas defined below), each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of the foregoing, agents and other representatives (collectively, the “Standstill TermRelated Persons” and each a “Related Person”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives without the Investor the economic equivalent of ownership of an amount of securities prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek engage in any solicitation of proxies or written consents to have called vote (or withhold the vote of) any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, or (ii) propose conduct any binding or nominate for election nonbinding referendum with respect to the Board any person whose nomination has not been approved by a majority voting securities of the Board (excluding the Investor DesigneeCompany, if any);
(d) or assist or participate in any other way, directly or indirectly, encourage, accept in any solicitation of proxies (or support a tender, exchange or other offer or proposal by written consents) with respect to any other Person or group (an “Offeror”) for voting securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a participant “participant” in a solicitation (“solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Exchange Act), to vote (or seek to advise or influence any Person, with respect to voting of withhold the vote of) any securities of the Company;Company;
(fii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any voting securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any course of conduct with the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders or by written consent;
(iv) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Restated Certificate of Incorporation of the Company, as amended (the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, 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 submit a proposal or offer for, or make any communication in opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of the Company such that after giving effect to any arrangement such Acquisition, the Investor Group or agreement any of its Related Persons holds, directly or indirectly, in excess of a 13.1% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to a Voting Exempt Matter (as defined in Section 5);
(viii) engage in any short sale, forward contract 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 the securities of the Company;
(ix) seek to advise, encourage, support or influence any person with respect to the voting of such securities(or execution of a written consent in respect of), including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase disposition of any securities of the Company or any Derivative, or any similar transaction involving its subsidiaries;
(x) other than in open market sale transactions whereby the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent identity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlpurchaser is not known, is referred sell, offer or agree to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’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 and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers;
(xi) take any action in support of or make any proposal or request that constitutes (or would constitute if taken), or make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, (B) any change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter 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;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with stockholders of the Company or others;
(xiii) form, join or in any other way participate in a “any partnership, limited partnership, syndicate, syndicate or other “group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act or otherwise) with respect to the Company or any its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company;
’s list of stockholders or its other books and records or make any request under Section 220 of the General Corporation Law of the State of Delaware or other applicable legal provisions regarding inspection of books and records or other materials (iincluding stocklist materials) request or propose to the Board or of the Company (or any of its officerssubsidiaries;
(xv) commence, directorsencourage, Affiliates employeesjoin as a party, attorneyssolicit or support any litigation, accountantsarbitration, financial advisors and derivative action in the name of the Company or any class action or other professional representatives)proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, any amendment to amend, modify or waiver of any provision waive the terms of this Section 2.1 (including this clause (i));
(j) make any 4 other than through non-public announcement regardingcommunications with the Company, or take any action that could require which the Company may accept or reject in its sole and absolute discretion, that would not trigger public disclosure obligations for any member of the Investor Group or its Related Persons or reasonably be expected to make a trigger public announcement regarding, a potential Business Combination disclosure obligations for the Company or any of the matters set forth in clauses (a) through (i) aboveCompany Related Persons; or
(kxvii) enter into any discussions, negotiations, arrangements agreements or agreements understandings with any Person relating person or entity with respect to any action the foregoing actions referred Investor Group is prohibited from taking pursuant to in (a) through (i) above; providedthis Section 4, howeveror advise, that assist, knowingly encourage or seek to persuade any person or entity 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. Notwithstanding the foregoing, nothing contained in this Section 2.1 4 or elsewhere in this Agreement shall prevent, restrict, encumber, prohibit or limit in any manner: (A) restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company regarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, through any director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Related Person.
(b) For purposes of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.:
Appears in 1 contract
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 24 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 14 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases Purchaser agrees that, for a period of Preemptive Right Sharestwo (2) years from the date of this Agreement, unless specifically invited in writing by Parent, neither Purchaser nor any of its Affiliates will, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, : (i) effect or seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyeffect, or (ii) propose announce any intention to effect or nominate for election to the Board in any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by way encourage any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose effect or seek to effect or become a participant in a solicitation participate in, (as such terms are defined in Regulation 14A under the Exchange ActA) any acquisition of any securities (or beneficial ownership thereof), or seek rights or options to advise or influence any Person, with respect to voting of acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company;
Parent or any Subsidiary, (f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iB) any merger, consolidation, business combination, tender or exchange offer, purchase merger or other business combination involving Parent, any Subsidiary or assets of Parent or the Subsidiaries constituting a significant portion of the Company’s consolidated assets or businessesof Parent and the Subsidiaries, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (iiC) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyParent or any Subsidiary, other than in each case without the prior written consent connection with Purchaser exercising any of its rights under any of the Transaction Documents, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or consent to vote any voting securities of Parent or any Subsidiary (other than in connection with a solicitation by Parent or its Board (a transaction described in clauses (i) and of Directors); (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC Exchange Act) with respect to Parent; (iii) otherwise act, alone or in concert with others, to seek to control or influence the Company management or any securities Board of the Company;
Directors of Parent; (iiv) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company which would reasonably be expected to force Parent to make a public announcement regarding, a potential Business Combination or regarding any of the types of matters set forth in clauses (a) through (i) above; or
or (kv) enter into discussions, negotiations, any discussions or arrangements or agreements with any Person relating third party with respect to any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 shall prevent4.3(a) will prohibit or otherwise restrict the Transactions, restrictPurchaser’s satisfaction of contractual obligations to Royal Dutch Shell PLC or its subsidiaries existing as of the date hereof and as described in Section 5.1(C) of the Farmout Agreement, encumberany sale of Common Stock by Purchaser or the passive ownership by Purchaser of not more than 19.9% of the outstanding Common Stock in the aggregate through one or more transactions. If at any time during such period, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialis approached by any third party concerning any transaction involving any assets, nonpublic proposals indebtedness or business of, or securities issued by, Parent or any Subsidiary, Purchaser will promptly inform Parent of the nature of such transaction and the parties involved.
(b) Notwithstanding anything to the Board for contrary contained in this Section 4.3, if at any time Parent consents to the taking of any action referred to in clauses (i)(B) through (i)(D), (ii) or (iii) of Section 4.3(a) by one or more third parties, Parent shall be deemed to have provided identical consent to Purchaser and its Affiliates, and this Section 4.3 shall be of no force or effect with respect to such consented-to actions during the pendency of such actions.
(c) Notwithstanding anything to the contrary contained in this Section 4.3, if at any time a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member third party does any of the Board; acts referred to in Section 4.3(a)(i)(B) or (C) the Investor or any and Section 4.3(b) does not apply, none of Purchaser and its Affiliates will be prohibited from exercising their respective rightstaking any actions set forth in Sections 4.3(a)(i)(B) or (C) during the pendency of such acts, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementprovided that Purchaser shall provide Parent with written notice of any such action, the Purchase Agreementincluding a reasonably detailed description thereof, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofat least 72 hours prior to taking such action.
Appears in 1 contract
Sources: Securities Purchase Agreement (Far East Energy Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases VIEX agrees that, during the Standstill Period, neither it nor any of its Affiliates or Associates under its control or direction will, and purchases it will cause each of Preemptive Right Sharessuch Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;manner:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called engage in any meeting solicitation of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation (“solicitation” as such terms are defined in Regulation 14A under the Exchange Act)Act of proxies or consents, or seek to advise or influence any Personin each case, with respect to voting of any securities of the Company;
(fii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock, other than a “group” that includes all or some of the persons or entities identified on Exhibit A, but does not include any other persons or entities not identified on Exhibit A as of the date hereof;
(iii) deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of VIEX and otherwise in accordance with this Agreement;
(iv) seek, alone or in concert with others, representation on the Board, or take any other action with respect to the election or removal of any proxy director of the Company or the calling of any meeting or referendum of stockholders or the taking of any action by written consent;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, or (B) make any offer or proposal (with or without conditions and whether public or private), with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its Affiliates;
(vi) commence or threaten any action or proceeding (other than pursuant any action or proceeding to enforce the terms of this Agreement);
(g) propose (i) against the Company or any merger, consolidation, business combination, tender of its Affiliates or exchange offer, purchase of the Company’s assets or businesses, purchase of make any securities demand for access to books and records of the Company or any Derivativeof its Affiliates;
(vii) make any request or submit any proposal seeking to amend or waive any of the terms of this Agreement; or
(viii) advise, encourage, support or influence, or seek to advise, encourage, support or influence, any similar transaction involving the Company person or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction entity with respect to the Company, in each case without taking of any action or the prior written consent making of any statement by any person or entity of the Board (a transaction described types enumerated in clauses (i) through (vii).
(b) For the purposes of this Agreement, “Standstill Period” shall mean the period commencing upon the execution and delivery of this Agreement and ending on the earliest of (i) the completion of the Next Annual Meeting, (ii) in the event that would result three (3) New Directors are not appointed to the Board, or in a Change the event any of ControlMessrs. Mutch, is referred to as a “Business Combination”);
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ has not resigned from the Board, within ninety (h90) act in concert with any Third Party to take any action in clauses (a) through (g) above, days from the date of this Agreement or, directly or indirectlyon the ninety-first (91st) day after the date of this Agreement, formunless, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities appointment of the Company;
(i) request New Directors or propose in the event any of Messrs. Mutch, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ has not resigned from the Board, the failure to appoint such New Directors or the failure of Messrs. Mutch, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ to resign from the Board is the result of VIEX unreasonably withholding its approval with respect to one or more proposed New Directors as determined by a judicial finding (which has not been reversed or overturned) by a court specified in Section 13 in which the Company parties to this Agreement participated, and (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision iii) a breach of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement Agreement by the Company. The Company after the Second Closing Date agrees that it has entered into a definitive agreement with a Third Party will accept stockholder nominations for a transaction involving a Business Combination; (B) director and proposals of business for the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rightsNext Annual Meeting until June 30, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof2017.
Appears in 1 contract
Standstill. (1) During the such period as (such periodx) Leven is Chairman, the “Standstill Term”) commencing as Chief Executive Officer or President of the First Closing Date Company and continuing until the later of (iy) the second (2nd) anniversary of Principal Stockholders and their Included Transferees, in the Second Closing Dateaggregate, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) at least one-half of the shares of Common Stock then issued and outstandingowned by such Persons, in the aggregate, on the date hereof, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingDesignated Holders each agree, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result of Directors of the Company specifically expressed in a Change resolution adopted by a majority of Controlthe directors of the Company who are not Affiliates of the Designated Holders, is referred that the Designated Holders, acting either individually or together, will not, and the Designated Holders will use their reasonable best efforts to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orcause each of its Affiliates not to, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;:
(i1) request acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally, provided, that any such securities shall be subject to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesprovisions hereof), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (as hereinafter defined), by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any amendment or waiver equity securities of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make that would result in such Designated Holder and its Affiliates, in the aggregate, owning Voting Securities representing a public announcement regardinggreater amount of the voting power of the Company than would be held by any Nonexcluded Person following such transaction. "Nonexcluded Person" means any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Principal Stockholders, the Included Transferees or a potential Business Combination or "group" which includes any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Principal Stockholders or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.Included Transferees;
Appears in 1 contract
Standstill. During (a) From the period (such period, the “Standstill Term”) commencing as date of the First Closing Date this Agreement and continuing until the later of three (i3) the second (2nd) year anniversary of the Second Closing Date, (ii) the date hereof and for such period thereafter as a Sonic Director serves on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and of Directors (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following“Standstill Period”), except as approved, invited or waived pre-approved in writing by the Company or the BoardBoard of Directors, or as contemplated by this Agreement:
(a) other than Permitted Purchases Sonic and purchases of Preemptive Right Sharesits Affiliates will not, in any manner, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) (A) acquire any additional shares of Common Stock, including through the acquisition of Beneficial Ownership of Common Stock, (B) make, initiate or, subject Section 4.02(c), participate in any tender offer or exchange offer for the Common Stock or any acquisition proposal (whether by merger, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction) involving the Company or its subsidiaries and not recommended by the Board of Directors, (C) seek to have called demand, request to demand, demand or join in any demand for a meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company’s stockholders, or (iiD) propose or nominate a director for election to the Board of Directors through any person whose nomination has not been approved by a majority “proxy access” procedure, (E) make, initiate or participate in any “solicitation” of “proxies” (as those terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) in opposition to the Board of Directors (excluding for the Investor Designeeavoidance of doubt, voting for the nominees selected by the Board of Directors shall not be deemed a solicitation of proxies), (F) fail to vote the Common Stock then held by Sonic or its Affiliates in favor of the nominees chosen by the Board of Directors, or (G) disclose any intention inconsistent with any of the foregoing; provided that, with respect to clause (F), the prohibitions on Sonic and its Affiliates contained therein shall only apply if and to the extent that the Company is, at the time of voting, in compliance with its obligations (if any) with respect to the nomination of Sonic Directors;
(ii) form, join or participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act, and the rules promulgated thereunder), other than a group involving Sonic and its Affiliates, pooling agreement, syndicate or voting trust with respect to the matters described in Section 4.02(a)(i), or otherwise act in concert with another stockholder of the Company with respect to the matters described in Section 4.02(a)(i);
(diii) directly act, alone or indirectlyin concert with others, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise control the management, the Board of Directors or influence any Person, with respect to voting of any securities policies of the Company;
(fiv) deposit seek to remove or support anyone else in seeking to remove, without cause, any securities member of the Company in Board of Directors (other than a voting trust Sonic Director), or subject encourage any securities of other Person to do so;
(v) agree or offer to take, or encourage or propose (publicly or otherwise) the Company taking of, assist, induce or encourage any other Person to take, or enter into discussions with any arrangement or agreement third party with respect to the voting taking of, any action referred to in clauses (i), (ii), (iii) or (iv) of this Section 4.02(a) (subject to the limitations stated therein); or
(vi) other than in connection with enforcement of Sonic’s rights under this Agreement, the Purchase Agreement and the other agreements contemplated thereby, otherwise act, alone or in concert with others, to knowingly and directly encourage, facilitate, incite, or seek to cause others to instigate legal proceedings against the Company or any of its Subsidiaries or their respective officers, directors, or employees.
(b) During the Standstill Period, neither the Company nor Sonic and its Affiliates shall make or issue or cause to be made or issued any disclosure, announcement, or statement (including any disclosure to any journalist, member of the media, or securities analyst) concerning the other party, in each case which disparages such other party or any of such securitiesother party’s directors, including director nominees, officers, members, employees, advisors or other affiliates; provided that nothing in this Section 4.02(b) shall preclude any Person from making or issuing, or causing to be made or issued, any disclosure, announcement or statement (i) that such Person determines in good faith is required by applicable law, rule or regulation, or (ii) in connection with a governmental investigation, audit or inquiry, legal process or any dispute involving the granting of any proxy (other than pursuant parties to this Agreement);.
(gc) propose During the Standstill Period, Sonic and its Affiliates may participate in a tender offer or exchange offer for Common Stock or any acquisition proposal (i) any whether by merger, consolidation, business combination, tender recapitalization, restructuring, liquidation, dissolution or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction other extraordinary transaction) involving the Company or its subsidiaries and not recommended by the Board of Directors, provided, that, prior to such participation, all then-serving Sonic Directors must resign from the Board of Directors. From and after such resignation(s), the Company shall have no continuing obligations regarding the nomination or appointment of Sonic Directors pursuant to Section 4.01.
(d) During the Standstill Period, Sonic and its Affiliates, whether directly or indirectly through any third-party intermediaries, shall not, publicly or privately, request that the Company or the Board of Directors waive, terminate, or amend the provisions of this Section 4.02.
(e) All of the Shares are subject to this Section 4.02. Any transferee of any of the Shares shall acknowledge and agree to be bound by the terms of this Section 4.02 for the remainder of the Standstill Period, except where such transferee acquires ownership of the Shares through a public offering that is made in compliance with this Agreement pursuant to a Registration Statement.
(f) For the purposes of this Section 4.02, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to “Beneficially Own” any Common Stock:
(i) which such Person or any of such Person’s Affiliates beneficially owns pursuant to Rule 13d-3 and Rule 13d-5 under the Exchange Act;
(ii) which such Person or any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsuch Person’s Affiliates, directly or indirectly, form, join has (A) the right or in any way participate in a “partnership, limited partnership, syndicatethe obligation to acquire (whether such right is exercisable, or such obligation is required to be performed, immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (written or oral and other group” as such terms are used in the rules of the SEC than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the Company exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; or (B) the right to vote such shares of Common Stock pursuant to any securities of the Companyagreement, arrangement or understanding (written or oral);
(iiii) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)which are beneficially owned, directly or indirectly, by any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination other Person with which such Person or any of such Person’s Affiliates has any agreement, arrangement or understanding (written or oral, but other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the matters set forth in clauses (a) through (i) abovepurpose of acquiring, holding, voting or disposing of any Common Stock of the Company; or
(kiv) enter into discussionswhich are beneficially owned, negotiationsdirectly or indirectly, arrangements by a counterparty (or agreements with any of such counterparty’s Affiliates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract) to which such Person relating to the foregoing actions referred to in (a) through (i) aboveor any of such Person’s Affiliates is a Receiving Party; provided, however, that nothing contained the number of Common Stock that a Person is deemed to Beneficially Own pursuant to this clause (iv) in connection with a particular Derivatives Contract shall not exceed the number of Notional Common Stock with respect to such Derivatives Contract; provided, further, that the number of Common Stock beneficially owned by each counterparty (including its Affiliates) under a Derivatives Contract shall for purposes of this Section 2.1 shall preventclause (iv) be deemed to include all Common Stock that are beneficially owned, restrictdirectly or indirectly, encumber, or limit in by any manner: other counterparty (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals such other counterparty’s Affiliates) under any Derivatives Contract to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; which such first counterparty (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rightssuch first counterparty’s Affiliates) is a Receiving Party, performing their respective obligations with this proviso being applied to successive counterparties as appropriate.
(g) For the purposes of this Section 4.02 “Derivatives Contract” means a contract between two parties (the “Receiving Party” and the “Counterparty”) that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock specified or otherwise consummating referenced in such contract (the transactions contemplated by this Agreementnumber corresponding to such economic benefits and risks, the Purchase Agreement“Notional Common Stock”), Joint Venture Agreementregardless of whether obligations under such contract are required or permitted to be settled through the delivery of cash, Common Stock or other property, without regard to any short position under the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofsame or any other similar contract.
Appears in 1 contract
Standstill. During (a) PNC covenants to and agrees with the period Company that, without the Company’s prior written consent, neither it nor any of its Affiliates will, directly or indirectly (such periodincluding by way of cooperating or coordinating with any third party with respect to the following actions or by encouraging, assisting, advising or facilitating the “Standstill Term”) commencing as taking of any of the First Closing Date and continuing until the later of following actions by any third party):
(i) In any way acquire Beneficial Ownership of any Voting Securities or any direct or indirect rights or options to acquire Beneficial Ownership of any Voting Securities other than those acquired by PNC from the second (2nd) anniversary Company pursuant to the terms of this Agreement or pursuant to a stock split, stock dividend or similar corporate action initiated by the Company; provided that PNC and its Affiliates may acquire Beneficial Ownership of additional Voting Securities to the extent that such acquisition would not result in PNC and its Affiliates owning more than 9.9% of the Second Closing Date, aggregate voting power of the Voting Securities.
(ii) Seek or propose to influence, advise, change or control the date on which the Investor ceases to have the right to designate a director to the management, Board pursuant to Section 5of Directors, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited governing instruments or waived by the Company policies or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities affairs of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent by way of any public communication or prohibit the Investor from investing in a fund communication with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or any Person other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of than the Company, or (ii) propose make, or nominate for election to the Board in any person whose nomination has not been approved by a majority way participate in, any “solicitation” of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act), ) to vote any Voting Securities or seek to advise or influence become a “participant” in any Person, “election contest” (as such terms are defined and used in Rule 14a-11 under the Exchange Act) with respect to Voting Securities or exercise voting rights associated with such Voting Securities other than in accordance with the recommendation of the Board of Directors of the Company; or
(iii) Make a request to amend or waive any provision of this Section 4.04(a); provided, however, that, the restrictions set forth in this Section 4.04(a) shall not apply to any acquisition of Voting Securities by PNC or its Affiliates in connection with PNC and its Affiliates’ ordinary course fiduciary activities or to the ordinary course activities of PNC or its Affiliates’ affiliated proprietary and third party fund and asset management activities or affiliated brokerage and trading or financing activities; provided, further, that the restrictions set forth in this Section 4.04(a) shall cease to apply to any Voting Securities sold or transferred by PNC to any person other than an Affiliate of PNC.
(b) For purposes of this Section 4.04, a Person shall be deemed to “Beneficially Own” any securities of which such Person or any such Person’s Affiliates is considered to be a “Beneficial Owner” under Rule 13d-3 under the Company;
(f) deposit Exchange Act as in effect on the date hereof or of which such Person or any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender Person’s Affiliates or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orassociates, directly or indirectly, formhas the right to acquire (whether such right is exercisable immediately or only after the passage of time or upon the satisfaction of conditions) pursuant to any agreement, join arrangement or understanding (whether or not in any way participate in a “partnershipwriting) or upon the exercise of conversion rights, limited partnershipexchange rights, syndicaterights, warrants or options, or other groupotherwise and “Voting Securities” as such terms means at any time shares of any class of capital stock of the Company that are used then entitled to vote generally in the rules election of the SEC with respect to the Company directors or any securities that are convertible into, or exchangeable or exercisable for, any such shares.
(c) The obligations of PNC and its Affiliates under Section 4.04(a) shall continue in full force and effect until such time as PNC and its Affiliates shall Beneficially Own less than one percent (1%) of the Company;
Common Stock then outstanding (i) request or propose to disregarding any shares of Common Stock that are held in the Board context of PNC and its Affiliates’ ordinary course fiduciary activities or the Company (ordinary course activities of PNC or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors Affiliates’ affiliated proprietary and other professional representativesthird party fund and asset management activities or affiliated brokerage and trading or financing activities), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (First Niagara Financial Group Inc)
Standstill. During For a period of twelve months following the period (such perioddate of this Agreement, the “Standstill Term”) commencing as Vendor shall not, without the prior written consent of the First Closing Date Purchaser, which consent may be given on such terms and continuing until conditions as the later of Purchaser may determine: (i) the second (2nd) anniversary of the Second Closing Datein any manner acquire, (ii) the date on which the Investor ceases agree to have the right acquire or make any proposal or offer to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of unissued or outstanding securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent Corporation or prohibit the Investor from investing in a fund with respect to which the Investor does not have propose or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) enter into, directly or indirectly, (i) seek any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept all or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities substantially all of the Company (if such offer or proposal would, if consummated, result in a Change of Control assets of the CompanyCorporation and its subsidiaries, such offer or proposal is referred to taken as an “Acquisition Proposal”);
a whole; (eii) directly or indirectly, solicit proxies indirectly “solicit” or consents participate or propose or seek or become a participant join with any person in a solicitation the “solicitation” of any “proxies” (as such terms are defined in Regulation 14A under the Exchange ActSecurities Act (Ontario)) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company Corporation; (iii) otherwise act alone or any Derivative, jointly or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with others to seek to control or to influence the management, the board of directors or policies of the Corporation; (iv) solicit, facilitate or encourage any Third Party transaction to take any action in clauses (a) through (g) aboveacquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, or, directly or indirectly, form, join or in any way participate in taken as a “partnership, limited partnership, syndicatewhole, or other group” as such terms are used in the rules acquire 20% or more of the SEC with respect to Common Shares (an “Acquisition Transaction”) other than a transaction by the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialor any person acting jointly or in concert with the Purchaser; (v) enter into, nonpublic proposals continue or participate in any discussions or negotiations regarding an Acquisition Transaction, or furnish to any other person any information with respect to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member business of the Board; Corporation or its properties, operations, prospects or conditions (Cfinancial or otherwise) in connection with an Acquisition Transaction or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other person (other than the Investor Purchaser or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, any person acting jointly or the Preferred Distributor Agreement, in each case, in accordance concert with the terms hereof and thereofPurchaser) to do or seek to do any of the foregoing; or (vi) advise, assist, encourage or act jointly or in concert with any other person in connection with any of the foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with the Purchaser.
Appears in 1 contract
Standstill. During At no time during the period Standstill Period (such period, as hereinafter defined) (so long as Isolagen and Isolagen Technologies are making the “Standstill Term”payments required by the Agreement) commencing as shall Individual (except with the approval or consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate Board as evidenced by a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived resolution duly adopted by the Company or the Board), or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesin any manner, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or do, or cause or permit any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Person controlled by Individual to do, any of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;following:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act), ) of proxies or consents with respect to securities of Isolagen with regard to any matter;
(ii) seek to advise advise, encourage or influence any Person, Person with respect to the voting of any securities of Isolagen, or induce, attempt to induce or in any manner assist any other Person in initiating any stockholder proposal or tender or exchange offer for securities of Isolagen or any change of control of Isolagen, or for the Companypurpose of convening a stockholders’ meeting of Isolagen; provided, however, that Individual may tender his Capital Stock in any such tender or exchange;
(fiii) acquire or agree to acquire, by purchase or otherwise, any class of equity securities of any entity that is publicly disclosed (by filing with the SEC or otherwise), or is otherwise known, to be the beneficial owner of more than 5% of the outstanding Capital Stock or any class or series thereof if, upon consummation of such acquisition, Individual or the Shareholder Group would (in the aggregate) own more than 5% of any class of equity securities of such entity;
(iv) effect or seek to effect or make any offer or proposal or any public announcement relating to a tender or exchange offer for securities of Isolagen or any of its subsidiaries or a merger, business combination (or other similar transaction that would result in a change of “control,” as defined in Rule 405 of the Securities Act of 1933), sale of assets, recapitalization, restructuring, liquidation, dissolution, consolidation or other extraordinary corporate transaction between Individual or the Shareholder Group and Isolagen or any subsidiary of Isolagen;
(v) deposit any securities Capital Stock of the Company Isolagen in a voting trust or subject any securities Capital Stock of the Company Isolagen to any arrangement or agreement with respect to the voting of such securities, including the granting securities of any proxy Isolagen (other than pursuant to this Agreementwith a Family Member or a trust controlled by the Individual);
(gvi) propose (i) take any merger, consolidation, business combination, tender or exchange offer, purchase action which would require Isolagen to make a public announcement regarding the types of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described matters set forth in clauses (i) and through (iiv) that would result in a Change of Control, is referred to as a “Business Combination”this Section 2(a);
(hvii) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in , for the rules purpose of the SEC with respect to the Company (A) acquiring, holding or any voting or disposing of securities of the Company;
Isolagen, or (B) taking any other actions restricted or prohibited under clauses (i) request or propose to the Board or the Company through (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision vi) of this Section 2.1 (including this clause (i)2(a);
(jviii) make any public announcement regardingparticipate with, advise, assist, encourage or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating person or entity with respect to any of the foregoing actions referred foregoing; or
(ix) disclose any intention with respect to in (a) through (i) aboveany of the foregoing; provided, however, that nothing contained in this Section 2.1 shall preventExhibit E is intended to prohibit Individual from voting his shares of Capital Stock at meetings of the stockholders of Isolagen (including through consents) or selling his shares of Capital Stock in the open market as permitted by law, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals as long as he continues to the Board for a transaction involving a Business Combination following the public announcement abide by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member restrictions of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSection 2(a).
Appears in 1 contract
Standstill. Section 4.1. During the period (such periodSignificant Holder Period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DateShareholder shall not, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) shall cause its Group Members directly or indirectly not to, without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingprior written consent of, or waiver by, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases subject to Section 4.2, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to the Company or the Board of Preemptive Right SharesDirectors) to acquire, directly by purchase or indirectlyotherwise, any securities (including any Equity Securities or Voting Securities, but excluding debt securities) or Derivative Instruments, or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities (including any Equity Securities or Voting Securities, but excluding debt securities) or Derivative Instruments, of the Company or any Subsidiary of the Company, or any securities (a “Derivative”)including any Equity Securities or Voting Securities, except, nothing in this Section 2.1(abut excluding debt securities) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have indebtedness convertible into or share decision-making authority over investment or divestment decisionsexchangeable for any such securities;
(b) make a tenderoffer, exchange or other public offer seek to acquire Common Stock and/or Common Stock Equivalentsacquire, or participate in any acquisition of assets or business of the Company and its Subsidiaries;
(c) directly conduct, fund or indirectlyotherwise become a participant in any “tender offer” (as such term is used in Regulation 14D under the Exchange Act) involving Equity Securities, (i) seek to have called Voting Securities or any meeting of the stockholders of the Company securities convertible into, or propose any matter to be voted upon exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the stockholders Board of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Directors;
(d) directly otherwise act in concert with others to seek to control or indirectly, encourage, accept influence the Board of Directors or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities shareholders of the Company or its Subsidiaries; provided that nothing in this clause (if d) shall preclude the Shareholder, its Group Members, or its Representatives, from engaging in discussions with the Company or its Representatives or the Shareholder’s designated and/or nominated director to the Board of Directors pursuant to Section 6.2 from engaging in any activities in his or her capacity as such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)designated and/or nominated director;'
(e) directly make or indirectly, solicit proxies or consents or propose or seek join or become a participant (as defined in a solicitation Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or encourage) any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under as promulgated by the Exchange ActSEC), or seek consent to vote any Voting Securities or any of the voting securities of any Subsidiaries of the Company (including through action by written consent), or otherwise knowingly advise or influence any Person, Person with respect to the voting of any securities of the CompanyCompany or its Subsidiaries;
(f) deposit make any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement public announcement with respect to the voting of such securitiesto, including the granting of any proxy (other than pursuant to this Agreement);
(g) or solicit or submit a public proposal for, or publicly propose (iwith or without conditions) any merger, consolidation, business combination, “tender or exchange offer” (as such term is used in Regulation 14D under the Exchange Act), recapitalization, reorganization, purchase or license of a material portion of the assets, properties, securities or indebtedness of the Company or any Subsidiary of the Company, or other similar extraordinary transaction involving the Company, any Subsidiary of the Company or any of its securities or indebtedness, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(g) call or seek to call a meeting of shareholders of the Company or initiate a shareholder proposal or meeting agenda item for action of the Company’s assets shareholders, or, except as contemplated by Article 6, seek election or businesses, purchase appointment to or to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors;
(h) form, join, become a member or otherwise participate in a Group (other than with any of its Group Members) with respect to the securities of the Company or any Derivativeof its Subsidiaries;
(i) deposit any Voting Securities in a voting trust or similar Contract or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Shareholder or any of its Affiliates or wholly-owned Subsidiaries, or (ii) in accordance with Section 3.1);
(j) publicly make any proposal or publicly disclose any plan, or cause or authorize any of its and their directors, officers, employees or agents to publicly make any proposal or publicly disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) knowingly take any action or cause or authorize any of its and their directors, officers, employees or agents to take any action on its or their behalf, that would reasonably be expected to require the Company or any of its Subsidiaries to publicly disclose any of the foregoing actions or the possibility of a business combination, merger or other type of transaction or matter described in this Section 4.1;
(l) knowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party in furtherance of any of the foregoing; or
(m) directly or indirectly, contest the validity of, any provision of this Section 4.1 (including this subclause) or Section 3.1 (whether by legal action or otherwise).
Section 4.2. Notwithstanding anything herein to the contrary, the prohibitions in Section 4.1 shall not apply to the activities of the Shareholder or any of its Group Members in connection with:
(a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board of Directors; or
(b) acquisitions made in connection with a transaction or series of related transactions in which the Shareholder or any of its Group Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or Derivative Instruments, or any similar transaction involving securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the time of the consummation of such acquisition.
Section 4.3. Notwithstanding anything herein to the contrary, the prohibitions in Section 4.1 shall immediately terminate, and the Shareholder and its Affiliates may engage in any of the activities specified in Section 4.1, in the event that:
(a) the Company publicly announces that it has entered into an agreement with any Person or Group which provides for (i) the acquisition by such Person or Group of more than 50% of the Common Stock or all or a majority of the assets of the Company or (ii) any merger, consolidation or similar business combination, including as a result of a stock split, stock dividend, reorganization, recapitalization, restructuringreclassification, liquidation combination, exchange of shares or other extraordinary transaction with respect to like change; involving the CompanyCompany and such Person or Group (each, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business CombinationThird Party Acquisition”);
(hb) act the Board of Directors recommends that shareholders of the Company tender their shares or vote in concert with any favor of a Third Party to take Acquisition; or
(c) any action in clauses Person or Group (ai) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules acquires Beneficial Ownership of more than 50% of the SEC with respect to outstanding Common Stock, (ii) makes an offer which if fully subscribed would result in such Person or Group acquiring Beneficial Ownership of more than 50% of the Company or any securities outstanding Common Stock of the Company;, or (iii) publicly announces an intention to engage in a Third Party Acquisition, and, in the case of clause (ii) or (iii), the Company does not, within ten (10) Business Days of public announcement thereof by such person or group, publicly oppose and/or recommend to its stockholders that they not accept such offer or support such Third Party Acquisition.
(d) Notwithstanding any of the foregoing, nothing in this Agreement shall restrict (i) the Shareholder’s or its Affiliates’ Representatives from effecting or recommending transactions in securities
(A) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner and (B) not at the direct or request or propose to of the Board or the Company (Shareholder or any of its officersAffiliates, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (Aii) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement director designated by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee Shareholder from performing its exercising his or her fiduciary duties as a member of the Board; or (C) Board of Directors.
Section 4.4. Notwithstanding anything herein to the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementcontrary, the Purchase AgreementShareholder and its Group Members may (i) acquire, Joint Venture Agreementoffer or seek to acquire, agree to acquire or make a proposal to acquire Shares (and any securities (including any Equity Securities or Voting Securities, but excluding debt securities) convertible into or exchangeable for Shares) and Derivative Instruments, if, immediately following such acquisition, the Preferred Distributor Agreementcollective Beneficial Ownership of Shares of the Shareholder and its Group Members, as a group, would not exceed the Standstill Level and (ii) make a non-public proposal or other communication to the Board of Directors regarding any action described in each case, Section 4.1 so long as the Shareholder or such Group Member reasonably believes that such offer will not result in accordance with the terms hereof and Company or Shareholder Parent being required by applicable Law to disclose the making of such offer promptly following the making thereof.
Appears in 1 contract
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 24 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. During For a period of twelve (12) months from the period (such perioddate of this letter agreement, unless specifically invited in writing by the “Standstill Term”) commencing as Board of Directors of the First Closing Date and continuing until the later Company, neither you nor any of your affiliates or Representatives acting on your behalf or on behalf of other persons acting in concert with you will in any manner, directly or indirectly: (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) the second any acquisition of any securities (2nd) anniversary or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Second Closing DateCompany or any of its subsidiaries or affiliates (provided, that Open Text and its affiliates may purchase securities of the Company resulting in ownership of up to three percent (3%), in the aggregate, of the outstanding securities of the Company or such subsidiary, as applicable), (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase merger or other business combination involving the Company, any of the Company’s subsidiaries or affiliates or assets or businesses, purchase of any securities of the Company or any Derivative, the subsidiaries or any similar transaction involving affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries or affiliates, (iiiii) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyCompany or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as such terms are used in each case without the prior written consent proxy rules of the Board Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its affiliates; (a transaction described in clauses (ib) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC ▇▇▇▇ ▇▇▇) with respect to the Company or otherwise act in concert with any securities 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;
; (id) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require which would or would reasonably be expected to force the Company to make a public announcement regarding, a potential Business Combination or regarding any of the types of matters set forth in clauses (a) through (i) above; or
or (ke) enter into discussions, negotiations, any discussions or arrangements or agreements with any Person relating third party with respect to any of the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained foregoing. Nothing in this Section 2.1 paragraph shall prevent, restrict, encumber, limit your ability to make private oral or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic written proposals to the Board for a of Directors or Chief Executive Officer of the Company regarding any potential transaction involving a Business Combination following the public announcement by you and the Company after so long as public disclosure of any such proposal is not then required by applicable law, rules or regulations, provided that the Second Closing Date that Company retains the discretion to make such disclosure if it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; deems it necessary or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofadvisable.
Appears in 1 contract
Standstill. During (a) Subject to the period (such periodprovisions set forth below, without the “Standstill Term”) commencing as prior consent of the First Closing Date Company, each Purchaser will not:
(i) acquire or agree, offer or propose to acquire, other than as contemplated or permitted in the Transaction Documents, directly or indirectly, alone or in concert with any other Person, by purchase or otherwise, any (A) ownership of any of the material assets or businesses of the Company, or any rights or options to acquire such ownership (including from any third party), or (B) Beneficial Ownership of any securities of the Company, or any rights or options to acquire such ownership (including from any third party); provided, however, that the foregoing shall not apply to (x) any Units, Common Shares or Warrants purchased pursuant to the terms of this Agreement or acquired on the exercise thereof or in exchange therefor, or (y) any Units, Common Shares or Warrants purchased pursuant to Permitted Transfers, including as between the Purchasers, or pursuant to the exercise of rights set forth in Section 5.4, or (z) any Common Shares purchased in Market Transfers so long as the aggregate amount of securities purchased in Market Transfers by such Purchaser represents not more than 5% of the Company’s outstanding Common Shares on a Fully Diluted Basis after giving effect to the applicable purchase;
(ii) solicit proxies (as such terms are defined under the Applicable Securities Laws), whether or not such solicitation is exempt under the Applicable Securities Laws, with respect to any matter from holders of any shares of the Company or any securities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of such shares;
(iii) initiate, or intentionally induce any other Person, entity or group (as defined in the Applicable Securities Laws) to initiate, any shareholder proposal or tender offer for any securities of the Company, any Change of Control of the Company or the convening of a shareholders’ meeting of the Company; or
(iv) enter into any arrangements or understandings with any other Person with respect to any matter described in the foregoing subparagraphs (i) through (iii).
(b) Subject to the provisions set forth below, without the prior consent of the Company, no Purchaser nor any member of the Purchaser Group will short sell any Common Shares.
(c) The provisions of Sections 5.2(a) and continuing until (b) shall not apply in respect of any action taken by the later Purchaser Designees in their capacity as members of the Board or any proposal by a Purchaser to the Board in a manner that such Purchaser believes in good faith does not require public disclosure by the Company. In addition, notwithstanding the provisions set forth in this Section 5.2, each Purchaser shall be entitled to make any disclosures required by Applicable Law.
(d) The provisions of Section 5.2(a) shall terminate on the earliest of (i) the second (2nd) date that is the first anniversary of the Second Closing Datedate hereof, (ii) the date on which the Investor ceases to have the right to designate a director any Purchaser Designee is not, upon nomination, elected to the Board pursuant at any annual meeting of the shareholders of the Company (or at any special meeting held to Section 5elect directors in lieu of an annual meeting) and is not otherwise appointed to the Board, and (iii) the date of a Change of Control, (iv) the date on which the Investor Company waives any Takeover Provisions for any Person (including SK ecoplant and SPVother than the Purchasers), (v) and its Subsidiaries beneficially own less than five percent (5.0%) the date of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived a material breach by the Company of any term or condition set forth herein, where the Board, Company does not cure such breach within ten (10) days after written notice of such breach from one or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities more of the Purchasers and (vi) the date of a material breach by the Company of any term or condition of the Warrants, where the Company does not cure such breach within ten (a 10) days after written notice of such breach from one or more of the Purchasers (such earliest date, the “DerivativeStandstill Termination Date”), except, nothing . The provision contained in this Section 2.1(a5.2(b) shall prevent or prohibit terminate on the Investor from investing in a fund with respect to which earliest of (i) the Investor does not have or share decision-making authority over investment or divestment decisions;
Regulatory Condition Outside Date, (ii) the Standstill Termination Date and (iii) the first Subsequent Closing Date. In addition, the provisions of Sections 5.2(a) and (b) make shall not apply at any time after (A) the Board resolves to pursue a tender, exchange Buyout Transaction or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon a transaction that is contemplated by the stockholders of the Company, or (ii) propose or nominate for election Board to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the CompanyControl, such offer or proposal is referred to as an “Acquisition Proposal”);
(eB) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (approves, recommends or accepts a Buyout Transaction or a transaction described in clauses (i) and (ii) that would result in a Change of Control, Control proposed by any Person (other than any Purchaser Group member) or (C) there is referred to as a “Business Combination”);Change of Board Recommendation.
(he) act in concert with any Third Party to take any action in clauses Until the earlier of (a) through the third anniversary of the date of this Agreement, (gb) above, or, directly or indirectly, form, join or in any way participate in the date on which no Purchaser Designee (other than the Purchaser Designee Industry Expert) is a “partnership, limited partnership, syndicatemember of the Board, or other group” (c) the Standstill Termination Date if such Standstill Termination Date occurs pursuant to Section 5.2(d)(ii), (iii), (iv), (v) or (vi), each Purchaser shall not solicit proxies (as such terms are used in defined under the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesApplicable Securities Laws), directly whether or indirectlynot such solicitation is exempt under the Applicable Securities Laws, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with replace any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; . For greater clarity, nothing contained herein shall require any Purchaser to vote its Common Shares for or (C) against the Investor or election of any member of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofBoard.
Appears in 1 contract
Standstill. During Except as permitted by Section 11.4(b), for a period of [***] following the period (such period, the “Standstill Term”) commencing as execution and delivery of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board of Directors of ARIAD US, no Controlled Person shall (a transaction described or assist or encourage others to) directly or indirectly in clauses any manner: (i) and (ii) that would result in a Change of Controlacquire, is referred announce an intention to as a “Business Combination”);
(h) act in concert with any Third Party acquire, or agree to take any action in clauses (a) through (g) above, oracquire, directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or interest in any securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any securities of ARIAD US; (ii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) any securities of ARIAD US with respect to any business combination, restructuring, recapitalization or similar transaction; (iii) form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the Company or any voting securities of the Company;
ARIAD US; (iiv) request acquire, announce an intention to acquire, or propose agree to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (x) any amendment of the assets, tangible or waiver intangible, of ARIAD US or (y) direct or indirect rights, warrants or options to acquire any provision assets of ARIAD US, other than in the ordinary course of business; (v) enter into any arrangement or understanding with others to do any of the actions restricted or prohibited under clauses (i), (ii), (iii) or (iv) of this Section 2.1 11.4(a); (including this clause (i));
(jvi) make any public announcement regardingotherwise act in concert with others, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating seek to the foregoing actions referred offer to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor ARIAD US or any of its Affiliates from making confidentialstockholders any business combination, nonpublic proposals restructuring, recapitalization or similar transaction to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; ARIAD US, or (Cvii) take any action to control or influence the Investor management, Board of Directors or any policies of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofARIAD US.
Appears in 1 contract
Sources: Share Purchase Agreement (Ariad Pharmaceuticals Inc)
Standstill. During 5.1 Each Holder agrees that, from the period date hereof to the date that is twelve (such period, 12) months following the Closing Date (the “Standstill TermPeriod”) commencing as ), none of it or its Affiliates under its control (or anyone acting on behalf of or at the First Closing Date and continuing until the later direction of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(asuch Persons) other than Permitted Purchases and purchases of Preemptive Right Shareswill, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or do any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing following unless requested or approved in this Section 2.1(a) shall prevent or prohibit the Investor from investing advance in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon writing by the stockholders Company:
i. engage in any solicitation of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), or seek to advise or influence any Personin each case, with respect to voting of any securities of the Company;
ii. form, join or in any way participate in any “group” (fwithin the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit F, but does not include any other entities or persons not identified on Exhibit F as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of a Holder to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
iii. deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of the Holders and otherwise in accordance with this Agreement;
iv. seek, or knowingly encourage any Person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any proxy (other than pursuant to this Agreement)directors;
(gA) propose make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (iB) make any offer or proposal (with or without conditions) with respect to any merger, consolidationacquisition, recapitalization, restructuring, disposition or other business combination, tender combination involving the Holders or exchange offer, purchase of their controlled Affiliates and the Company’s assets , (C) affirmatively solicit a third party to make an offer or businessesproposal (with or without conditions) with respect to any merger, purchase acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
vi. seek, alone or in concert with others, representation on the Board;
vii. knowingly seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or any Derivativespecial meeting of stockholders, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction except in accordance with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveAgreement; or
(k) enter into discussions, negotiations, arrangements viii. make any request or agreements submit any proposal to amend the terms of this Agreement other than through non-public communications with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party would not be reasonably determined to trigger public disclosure obligations for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofParty.
Appears in 1 contract
Sources: Senior Secured Convertible Notes Agreement (Comscore, Inc.)
Standstill. During the period (such periodServier agrees that neither it nor any Affiliate, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, acting alone or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases part of Preemptive Right Sharesany group, shall directly or indirectly, for a period commencing on the Effective Date and ending *** after the Effective Date, without the prior written approval of MacroGenics’ Board of Directors:
15.1.1 acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d 3 under the Securities and Exchange Act of Common Stock and/or Common Stock Equivalents and/or 1934) of any instrument that gives of the Investor the economic equivalent assets or businesses of ownership MacroGenics or of an amount of any securities of the Company (a “Derivative”)MacroGenics, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have any rights or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer options to acquire Common Stock and/or Common Stock Equivalents;
any such ownership (c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by including from a majority of the Board (excluding the Investor Designee, if anythird party);
(d) directly 15.1.2 make, or indirectlyin any way ***, encourage, accept or support a tender, exchange or other offer or proposal by in any other Person or group (an “Offeror”) for securities solicitation” of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act)Commission) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securities, including the granting any voting securities of any proxy (other than pursuant to this Agreement)MacroGenics;
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, 15.1.3 form, join or in any way participate in in, a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Securities Exchange Act of 1934) with respect to any voting securities of MacroGenics;
15.1.4 otherwise act, whether alone or in concert with others, to seek to propose to MacroGenics any merger, business combination, restructuring, recapitalization or similar transaction to or with MacroGenics or otherwise act, whether alone or in concert with others, to seek to control, *** of MacroGenics who is not nominated by the Company then incumbent directors,
15.1.5 solicit, negotiate with, or provide any information to, any person with respect to a merger, exchange offer or liquidation of MacroGenics or any other acquisition of MacroGenics, any acquisition or voting securities of or all or any portion of the Companyassets of MacroGenics or any other similar transaction;
(i) request 15.1.6 announce an intention to, or propose to the Board or the Company (or *** with any third party with respect to, any of its officersthe foregoing; or
15.1.7 disclose any *** inconsistent with the foregoing, directorsor advise, Affiliates employeesassist or encourage any other persons in connection with any of the foregoing. In addition, attorneysServier hereby agrees that during the term of this Agreement, accountants, financial advisors and other professional representatives)it shall not request MacroGenics, directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 ARTICLE 15, (including this clause (i));
(jsentence.) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof***.
Appears in 1 contract
Standstill. During (a) Except as otherwise set forth in or permitted by this Agreement, from the period date of this Agreement until the expiration of the Standstill Period (such periodas defined below), each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of the foregoing, agents and other representatives (collectively, the “Standstill TermRelated Persons” and each a “Related Person”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives without the Investor the economic equivalent of ownership of an amount of securities prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek engage in any solicitation of proxies or written consents to have called vote (or withhold the vote of) any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, or (ii) propose conduct any binding or nominate for election nonbinding referendum with respect to the Board any person whose nomination has not been approved by a majority voting securities of the Board (excluding the Investor DesigneeCompany, if any);
(d) or assist or participate in any other way, directly or indirectly, encourage, accept in any solicitation of proxies (or support a tender, exchange or other offer or proposal by written consents) with respect to any other Person or group (an “Offeror”) for voting securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a participant “participant” in a solicitation (“solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Exchange Act), to vote (or seek to advise or influence any Person, with respect to voting of withhold the vote of) any securities of the Company;Company;
(fii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any voting securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any course of conduct with the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders or by written consent;
(iv) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Restated Certificate of Incorporation of the Company, as amended (the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, 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 submit a proposal or offer for, or make any communication in opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of the Company such that after giving effect to any arrangement such Acquisition, the Investor Group or agreement any of its Related Persons holds, directly or indirectly, in excess of a 13.1% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to a Voting Exempt Matter (as defined in Section 5);
(viii) engage in any short sale, forward contract 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 the securities of the Company;
(ix) seek to advise, encourage, support or influence any person with respect to the voting of such securities(or execution of a written consent in respect of), including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase disposition of any securities of the Company or any Derivative, or any similar transaction involving its subsidiaries;
(x) other than in open market sale transactions whereby the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent identity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlpurchaser is not known, is referred sell, offer or agree to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’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 and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers;
(xi) take any action in support of or make any proposal or request that constitutes (or would constitute if taken), or make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, (B) any change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter 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;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with stockholders of the Company or others;
(xiii) form, join or in any other way participate in a “any partnership, limited partnership, syndicate, syndicate or other “group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act or otherwise) with respect to the Company or any its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company;
’s list of stockholders or its other books and records or make any request under Section 220 of the General Corporation Law of the State of Delaware or other applicable legal provisions regarding inspection of books and records or other materials (iincluding stocklist materials) request or propose to the Board or of the Company (or any of its officerssubsidiaries;
(xv) commence, directorsencourage, Affiliates employeesjoin as a party, attorneyssolicit or support any litigation, accountantsarbitration, financial advisors and derivative action in the name of the Company or any class action or other professional representatives)proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, any amendment to amend, modify or waiver of any provision waive the terms of this Section 2.1 (including this clause (i));
(j) make any 4 other than through non-public announcement regardingcommunications with the Company, or take any action that could require which the Company may accept or reject in its sole and absolute discretion, that would not trigger public disclosure obligations for any member of the Investor Group or its Related Persons or reasonably be expected to make a trigger public announcement regarding, a potential Business Combination disclosure obligations for the Company or any of the matters set forth in clauses (a) through (i) above; Company Related Persons; or
(kxvii) enter into any discussions, negotiations, arrangements agreements or agreements understandings with any Person relating person or entity with respect to any action the foregoing actions referred Investor Group is prohibited from taking pursuant to in (a) through (i) above; providedthis Section 4, howeveror advise, that assist, knowingly encourage or seek to persuade any person or entity 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. Notwithstanding the foregoing, nothing contained in this Section 2.1 4 or elsewhere in this Agreement shall prevent, restrict, encumber, prohibit or limit in any manner: (A) restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company regarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, through any director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Related Person.
(b) For purposes of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.:
Appears in 1 contract
Sources: Cooperation Agreement