Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company; (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 or any Subsidiary; (i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or (j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 5 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. Executive agrees that for a During the period (such period, the “Standstill Term”) commencing as of 18 months from 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 Executive’s termination the shares of employment for any reasonCommon Stock then issued and outstanding, neither Executive nor the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of his affiliates the following, except as approved, invited or persons waived by the Company or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting or as contemplated by resolution approved by a majority this Agreement:
(a) other than Permitted Purchases and purchases of all members of the BoardPreemptive Right Shares, directly or indirectly, in acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any manner (instrument that gives the obligations pursuant to this Section 13 being referred to as, Investor the “Standstill”):
(a) acquire, offer or propose to acquire, solicit economic equivalent of ownership of 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 amount of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or any Subsidiary, other than prohibit the acquisition Investor from investing in a fund with respect to which the aggregate of less than oneInvestor does not have or share decision-half of one percent of the outstanding voting securities of the Companymaking authority over investment or divestment decisions;
(b) makemake a tender, exchange or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant other public offer to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiaryacquire Common Stock and/or Common Stock Equivalents;
(c) initiatedirectly or indirectly, propose or “solicit” (as such term is used in the proxy rules i) seek to have called any meeting 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) any of the 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, 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 SubsidiaryDerivative, 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”);
(ih) make act in concert with any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal Third Party to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (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) of this Standstillmake any public announcement regarding, or otherwise intentionally taketake 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 solicitlimit 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 cause or encourage others to takethe Preferred Distributor Agreement, any action inconsistent in each case, in accordance with the foregoingterms 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. Executive Each Stockholder agrees that, until such time that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members such Stockholder beneficially owns Voting Stock representing less than 5% of the Boardoutstanding shares of Common Stock (on an as-converted basis), none of it or its Affiliates will, directly or indirectly, do any of the following unless requested or approved in any manner (advance in writing by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Company:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to [Reserved.]
(b) 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, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquire, acquire any shares of Preferred Stock or Common Stock (including any derivative securities convertible into or exchangeable for, contracts or instruments in any voting securities way related thereto) of the Company such that after such acquisition the Stockholder and its Affiliates or any Subsidiary, other direct or indirect parent of such Stockholder would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 49.99% of the outstanding voting securities shares of Common Stock (on an as-converted basis); provided that the foregoing restriction in this Section 3.2(b) shall not apply to any acquisition (i) pursuant to Section 4.2 (Preemptive Rights) of this Agreement or 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 result of operation of Section 10 (Anti-Dilution Adjustments) of the CompanyCertificate of Designations;
(bc) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is used in within the proxy rules meaning of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 14a-1 under 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 vote any manner whatsoever any person or entity with respect to the voting of any voting securities Voting Stock of the Company or any Subsidiary;
(c) initiateits subsidiaries, propose or “solicit” (as such term is used in the proxy rules call or seek to call a meeting of the Securities and Exchange Commission) Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders or seek the removal of any director from the Board of the Company or any Subsidiary for the approval of stockholder proposals whether made (other than 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 Article II of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersthis Agreement);
(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the Company or any of 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 other Person to make any public announcement or other disclosure with respect thereto or (ii) any public disclosure in any filings by the Stockholder or its Affiliates with the SEC to the extent required by applicable law or stock exchange rules);
(e) form, join or in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act Act) in connection with respect to any voting securities Voting Stock of the Company or the Subsidiaries;
(e) acquireits subsidiaries, offer to acquire including with any other Stockholder or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of its Affiliates; provided that taking any action as required by this Agreement shall not constitute a violation of this Section 3.2(e); provided further that the assetsforegoing restriction in this Section 3.2(e) shall not apply to any action taken in connection with the previously announced merger of Charter Communications, tangible Inc. and intangible, the Liberty Broadband Stockholder and shall not apply upon completion of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiarysuch merger;
(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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in would reasonably be expected to cause or require of the Company having to make a public announcement regarding any actions prohibited by this Section 3.2;
(g) contest the validity or enforceability of this Section 3.2; or
(h) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, assist or encourage, any other persons to do any of the matters referred foregoing; provided, however, that nothing contained in this Section 3.2 shall limit, restrict or prohibit (i) any confidential, non-public discussions with or communications or proposals to management or the Board by the Stockholder, its Affiliates or 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 accordance with the terms and conditions of this Agreement and the Certificate of Designations or (iii) the ability of any Director to vote or 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) through or (jb) of this Standstillparagraph has occurred and resulted in the restrictions imposed under this Section 3.2 ceasing to apply to a Stockholder, or otherwise intentionally takethen, or solicitin 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, or cause or encourage others 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 take, 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 inconsistent 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 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 foregoingLiberty Broadband Stockholder or any of its Permitted Transferees and any of the foregoing Persons’ respective Subsidiaries.
Appears in 4 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the Expiration Date (such period, neither Executive nor any of his affiliates or persons or entities the “Standstill Period”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) 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 election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) 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 in 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 consents;
(b) knowingly encourage or matters presented advise any other Person or assist any Person in so encouraging or advising any Person with respect to the Companygiving or withholding of any proxy, consent or other authority to vote (other than such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or its Subsidiaries’ stockholdersact in concert with 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 Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(d) form(i) engage in, join or become a party to, any way participate in a “group” within the meaning swap or hedging transaction or other derivative agreement of Section 13(d)(3) of the Exchange Act any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any voting securities third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company 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 SubsidiariesInvestors having beneficial ownership of greater than 9.99% of the Company’s outstanding common stock;
(e) acquiresell, offer to acquire or agree to acquiresell, directly or indirectly, alone through swap or in concert with others, by purchase, exchange hedging transactions or otherwise, (i) any of voting rights decoupled from the assets, tangible and intangible, underlying common stock of the Company or held by the Investors to any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryThird Party;
(f) arrange, make or in any way participate, directly or indirectly, in any financing for tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the purchase Company or any of any voting its subsidiaries or the Company’s securities or securities convertible or exchangeable into or exercisable for any voting securities or a material amount of the 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 otherwise participating in any Subsidiary;
(g) otherwise actsuch 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 seek to propose to the Company or any Subsidiary or the Board that would reasonably be expected to require a public announcement regarding any of their respective stockholders the types of matters set forth above in this paragraph;
(g) enter into a voting trust or make proxy, arrangement or agreement or subject any public statement 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 any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or hereafter owned by them and other transaction involving than granting proxies in solicitations approved by the Company or any SubsidiaryBoard;
(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 (i) seek, alone or in concert with others, election or appointment to to, or representation on, the Board, or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, except as set forth herein, or (ii) seek, alone or in concert with others, the Board removal or the removal resignation of any member of the Board, or propose any matter to be voted upon by Board (other than the stockholders of the Company or any SubsidiaryNew Director);
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise);
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to amend, waive or terminate any provision of this Standstill or seek permission to or books and records;
(k) make any public announcement statement or public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to the Company’s certificate of incorporation or By-Laws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) 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 6; provided, however, 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 provision of proceeding initiated by, or on behalf of, the StandstillCompany against a Restricted Person, or (D) 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 Investors are prohibited from taking pursuant to this paragraph 6; or
(jn) announce an intention make any request or submit any proposal to do, amend or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of waive the actions restricted or prohibited under clauses (a) through (j) terms of this StandstillAgreement, or take any action that might in each case which would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, such request or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingproposal.
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. Executive agrees that During the term of his employment and for a period of 18 six months from after the date of the Executive’s termination of employment for any reasonis terminated, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall not, directly or indirectly, 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 indirectly or in concert with othersany other person, engage in any of the following:
(i) purchase, offer to purchase, or agree to purchase or otherwise acquire, by means of a purchase, tender offer, or exchange offer, through the acquisition business combination or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants other manner (including rights or options to acquireacquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable forfor Common Stock of the Company, that would result in the Executive, the Executive’s affiliates, and the members of any “group” of persons with which the Executive or his affiliates are acting in concert beneficially owning, 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 securities 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 Subsidiaryof its affiliates, other than including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the acquisition in the aggregate vote of less than one-half any holder of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jiii) announce an intention to dobe employed by any person that, directly or to enter into any arrangement or understanding with others (whether written or oral) to dothrough its affiliates, or to finance, intentionally advise, enable, assist or encourage others to do engages in any of the actions restricted foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or prohibited under clauses (a) through (j) other awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in connection with or as a result of this Standstill, or take any action that might result in the Executive’s employment with the Company having 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 make a public announcement regarding any be in “play” through no act of the matters referred Executive, the Executive will no longer be subject to in clauses (a) through (j) the limitations of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSections 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. Executive The Stockholder agrees that that, for a period of 18 months from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor the Stockholder will not, and will not cause or permit any of his 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, “Representatives”) or affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited associates (as such terms are defined in writing by Rule 12b-2 under the Board, acting by resolution approved by a majority of all members of the Board, Exchange Act) to (i) directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) indirectly acquire, offer or offer, propose to acquire, solicit an offer to sell or agree to acquire, directly any securities, debt obligations or indirectly, alone assets (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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities interests therein) of the Company or any Subsidiaryof 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 than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) makederivative security, contract or instrument in any way related to the price of the underlying security), (ii) participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules solicitation of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesproxies, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting vote of any voting person, regarding any securities or debt obligations of the Company or any Subsidiary;
of its subsidiaries, (ciii) initiateengage, or offer, 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) any of the 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 indirectlyengage, in any financing for the purchase of any voting securities merger or securities convertible other business combination or exchangeable into or exercisable for any voting securities or assets of the Company acquisition transaction or any Subsidiary;
(g) otherwise act, alone tender 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 exchange offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization or any purchase or sale of any material amount of assets or equity or debt securities or other transaction involving indebtedness of or regarding the Company or any Subsidiary;
of its subsidiaries, (hiv) seekseek or propose to influence or control the Company’s management or policies, alone or in concert with others, to control, change or influence including the management, the Board or management and policies of the Company its subsidiaries, (v) advise, assist, encourage, finance or invest in any Subsidiary, or otherwise seek, alone or person in concert connection with others, election or appointment to or representation on, or to nominate or propose the nomination any 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or (vi) disclose any request plan, intention or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing, (vii) make any communications with the Company or prohibited under clauses its Representatives that could require the Company to make any public announcement or (aviii) through (j) make any request to waive or amend any provision of this Standstill, agreement or to permit you to take any action that might result specified herein, in each case without the prior written approval of the Company. Nothing in this paragraph shall be deemed to prevent the Stockholder’s Representatives from engaging, in the Company having to make a public announcement regarding any ordinary course of business, in brokerage, asset management, trust, underwriting, market making and other similar financial services ordinary course business activities involving securities of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
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. Executive agrees that for a period 10.1. From and after the Closing, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority the Investor hereby agrees that until such time as the earlier to occur of all members (x) it ceases to Beneficially Own 5% of the BoardTotal Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in any manner (a collared hedging transaction of the obligations pursuant to this Common Stock following the conclusion of the period set forth in Section 13 being referred to as, the “Standstill”):9;
(ac) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way knowingly assist, by purchaseor knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender offer, or exchange offer, through merger or other business combination involving the acquisition or control of another person or entity, or otherwiseCompany, any direct of its Subsidiaries or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities assets of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent its Subsidiaries constituting a significant portion of the outstanding voting securities consolidated assets of the Company;
(b) makeCompany and its Subsidiaries, or in any way participate in, directly or indirectly, alone or in concert with others, (iii) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Section 14 of Rule 14a-8 under the Exchange Act) Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of proxies Designations, otherwise seek the election or consents to vote, whether subject to or exempt from the proxy rulesappointment to, or seek to adviserepresentation on, encourage or influence the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any manner whatsoever voting trust or subject any person Voting Stock to any arrangement or entity agreement with respect to the voting of any Voting Stock that is inconsistent with the voting securities obligations 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) any of the 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 SubsidiaryInvestor hereunder;
(f) arrangeexcept as expressly contemplated by this Agreement or the Certificate of Designations, 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 representation on or 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 control 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 or any Subsidiaryits Subsidiaries;
(ig) make form, join or in any publicly disclosed proposal, public statement, public inquiry or public disclosure way participate in a “group” (within the meaning of any intention, plan, or arrangement (whether written or oralSection 13(d) inconsistent with of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement Exchange Act) with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do Company involving any of the actions restricted or prohibited items described under clauses (a) through (jf) of this Standstill, or hereof;
(h) knowingly take any action that might which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in actions described under clauses (a) through (jf) of this Standstill, or hereof; or
(i) otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoingforegoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 3 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Arthrocare Corp), Securities Purchase Agreement (OEP AC Holdings, LLC)
Standstill. Executive Subject to the provisions of the sentence next following, the Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonuntil January 1, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
1999 it and its Affiliates shall not (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, purchase or otherwise, any voting securities, direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants rights or options to acquire any assets voting securities, direct or indirect rights or options to acquire any voting securities, or securities or instruments convertible into voting securities, of the Company or any Subsidiary;
Company, (fb) arrangemake, or in any way participate, directly or indirectly, in any financing for "solicitation" of "proxies" to vote (as such terms are used in the purchase proxy rules of the SEC) securities of the Company, or seek to advise or influence any person or entity with respect to any voting of any securities of the Company, (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, (d) make any public announcement with respect to or securities convertible make or exchangeable into submit a proposal or exercisable offer (with or without conditions) for any voting the 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 extraordinary transaction involving the Company or any Subsidiary;
of its Subsidiaries, (he) seeksubmit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from any regulatory agency with respect to an acquisition of the Company or any of its securities or assets, (f) otherwise act alone or in concert with others, others to control, change or influence seek to control the management, the Board 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 Rothschild, the Company agrees that the prohibitions of the preceding sentence shall not apply to any SubsidiaryAffiliates of Rothschild that are not under the control of Rothschild and are engaged in the regular business of trading in publicly-traded securities, so long as such affiliates have not received, 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 been given access to, the Board or the removal of any member of the BoardConfidential Information and have not received any instructions, recommendations or propose any matter advice pertaining to be voted upon by the stockholders an investment in or control of the Company or from any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal party having access to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingConfidential 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. Executive agrees that for a period of 18 months from (a) During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of each Wynnefield Party shall not, and shall cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Representatives not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyseek, alone or in concert with others, by purchase(A) to call a meeting of stockholders, tender offer(B) representation on the Board, exchange offer, through except as specifically contemplated in Section 1 of this Agreement or (C) the acquisition or control removal of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities member of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(bii) makesolicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the shares of the Common Stock, or in any way participate infrom the holders of the shares of Common Stock, directly or indirectly, alone or in concert with others, any become a “solicitationparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) of proxies in or consents to voteassist, whether subject to or exempt from the proxy rulesencourage, or seek to advise, encourage advise or influence any Third Party (as defined below) in any manner whatsoever any person or entity with respect to the voting “solicitation” of any voting securities of the Company proxy, consent or any Subsidiary;
(c) initiate, propose or “solicit” other authority (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 terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate influence that is consistent with the CompanyBoard’s or its Subsidiaries’ stockholders or others recommendation in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholderssuch matter);
(diii) form, (A) form or join or any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities shares of Common Stock (for the avoidance of doubt, excluding any group composed solely of the Company Wynnefield Parties and their Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Subsidiaries;
Company’s stockholders (eother than to the Wynnefield Parties and their Affiliates and the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) acquire, offer to acquire or (C) agree to acquire, directly deposit or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) deposit any shares of the assets, tangible and intangible, of the Company Common Stock 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 such shares of Common Stock in any voting trust or similar arrangement (other than (x) to the Wynnefield Parties and their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case, of the Wynnefield Parties and their Affiliates);
(iv) execute any written consent as a stockholder with respect to the Company or its Common Stock, except as contemplated by this Agreement;
(v) 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 similar business transaction involving the Company or a material amount of the assets or businesses of the Company or actively encourage, initiate or support any other Third Party in any such activity; provided that the Wynnefield Parties shall be permitted to sell or tender their shares of Common Stock or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction; 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 or other Voting Securities that is recommended by the Board, then the Wynnefield Parties shall similarly be permitted to commence a tender offer or exchange offer for all of the 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 majority of Wynnefield Designees serving on the Board;
(vi) present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(vii) seek to have the Company waive, amend or modify any provisions of the 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 make any request pursuant to 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 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 Wynnefield Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 5(a)(ix) shall apply mutatis mutandis to the 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 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 or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to rights decoupled from the Company or any Subsidiary or underlying securities held by any of their respective stockholders or make any public statement with respect the Wynnefield Parties to any mergerperson in a private transaction (or a series of related private transactions) that is not (A) a party to this Agreement, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) 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 a member of the Board, (C) an officer of the Company, or propose (D) an Affiliate of any matter 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 voted upon 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; (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 cause 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 Subsidiary;other persons to engage in actions which, if taken by such Party, would violate this Agreement.
(d) Anything to the contrary in this Section 5 or elsewhere in this Agreement (including Section 2) notwithstanding, the Wynnefield Parties shall not be prohibited from (i) make nominating directors for election at the 2021 Annual Meeting, (ii) submitting proposals for consideration by stockholders at the 2021 Annual Meeting; (iii) soliciting proxies for the election of its director nominees or approval of its stockholder proposals at the 2021 Annual Meeting, 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 (v) making any publicly disclosed proposalpublic or private communication in connection with any of the foregoing, in compliance with Rule 14a-9 and any 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 opposition to any nomination, solicitation or proposal permitted to be made by the Wynnefield Parties pursuant to this Section 5(d), in compliance with Regulation 14A under the Exchange Act or (ii) making any public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent private communication in connection with the foregoing, or make or disclose in compliance with Rule 14a-9 and any request or proposal to amend, waive or terminate any other applicable provision of this Standstill or seek permission to or make any public announcement with respect to any provision of Regulation 14A under the Standstill; orExchange Act.
(je) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any The provisions of the actions restricted or prohibited under clauses (ai) through (jxii) of this Standstill, or take any action that might result in Section 5(a) shall cease to apply following the Company having to make a public announcement regarding any of an Extraordinary Transaction that has been approved by the Board and which is opposed by a majority of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with Wynnefield Designees serving on the foregoingBoard.
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. Executive agrees that for a period Prior to the Termination Date, except as otherwise provided in this Agreement, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardInvestor shall not, and shall cause its respective controlled Affiliates, not to, directly or indirectly, in any manner whole or in part (the obligations pursuant to in each case, except as permitted by this Section 13 being referred to as, the “Standstill”Agreement):
(a) acquire, offer or propose seek to acquire, solicit an offer to sell or agree to acquireacquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the 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, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (other than through a broad-based market basket or index) or any Subsidiary, other than voting rights decoupled from the acquisition underlying voting securities which would result in the aggregate of less ownership or control of, or other beneficial ownership interest in, 10% or more than one-half of one percent of the then-outstanding voting securities shares of the CompanyCommon Stock in the aggregate;
(b) make(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 proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any way participate insolicitation of proxies in respect of any stockholder proposal for consideration at, directly or indirectlyother business brought before, any Stockholder Meeting; (v) call or seek to call, or request to call of, alone or in concert with others, any “solicitation” Stockholder Meeting, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as such term is used in amended and as may be further amended from time to time, the proxy rules “Certificate of Incorporation”) or the Securities Amended and Exchange Commission promulgated pursuant Restated Bylaws (as amended and as may be further amended from time to Section 14 of time, the Exchange Act“Bylaws”), including any “town hall meeting”; or (vi) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to adviseinitiate, encourage or influence participate in any manner whatsoever any person “withhold” or entity similar campaign with respect to the voting of any voting securities of the Company or any SubsidiaryStockholder Meeting;
(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 in any way participate in a “group” within the meaning any group or agreement of Section 13(d)(3) of the Exchange Act any kind with respect to any voting securities of the Company, including in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting;
(d) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the Subsidiariesvoting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 actseek publicly, alone or in concert with others, to seek to propose to amend any provision of the Company Certificate of Incorporation or any Subsidiary or any of their respective stockholders or Bylaws;
(f) make any public statement proposal with respect to to: (i) any mergerchange in the number or term of directors serving on the Board or the filling of any vacancies on the Board, business combination(ii) any change in the capitalization or dividend policy of the Company, consolidation(iii) any other change in the Company’s management, salegovernance, tender offercorporate structure, exchange offeraffairs or policies, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving (iv) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiarysecurities 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;
(hg) initiate, cause, effect (or seek, offer or propose to effect) any Extraordinary Transaction or make, directly or indirectly, any proposal, either alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any Subsidiarysuch matter;
(h) enter into any agreements with any Third Party with respect to any of the foregoing, or otherwise seekadvise, alone assist or in concert seek to persuade any Third Party to take any action with others, election or appointment respect 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 or any Subsidiaryforegoing;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose in any way advance publicly any request or proposal to that the Company or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(j) announce an intention take any action challenging the validity or enforceability of this Section 3 or this Agreement unless the Company is challenging the validity or enforceability of this Agreement; provided, however, that (i) the restrictions in this Section 3 shall not prevent, prohibit or 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 party from whom information is sought (so long as such request did not arise as a result of action by Investor), (B) any private or confidential communication to door with the Board or any officer or director of the Company or legal counsel that is not intended to, and would not reasonably be expected to, trigger or to enter into require any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do public disclosure of such communications for any of the actions restricted parties or prohibited under clauses (aC) through (j) of this Standstill, any private or take any action that might result in confidential communication regarding the Company having to make a 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 announcement regarding disclosure of such communications for any of the matters referred parties and (ii) the restrictions in this Section 3 shall not restrict Investor or its Representatives from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the 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 in clauses (a) through (j) the other terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAgreement.
Appears in 3 contracts
Sources: Cooperation Agreement (Cutera Inc), Cooperation Agreement (Cutera Inc), Cooperation Agreement (Pura Vida Investments, LLC)
Standstill. Executive agrees Each of CD&R Fund and the Purchaser Parties agree that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Company Board, acting by resolution approved by a majority of all members of CD&R Fund and the BoardPurchaser Parties shall not, directly or knowingly indirectly, and shall use reasonable best efforts to cause their respective Affiliates not to (either individually, or in concert with any manner other Person, or as a “group” (as such term is used in Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Exchange Act)):
(a1) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal 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, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rightsrights to acquire any equity securities of the Company or any of its Affiliates, warrants or options to acquire, or any securities convertible into or exchangeable forfor 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 (1) any issuance by the Company of shares of Common Stock or options, warrants or other rights to acquire Common Stock (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 in open market purchases (but only to the extent of such cash dividends paid by the Company on the Preferred Stock), to the extent permitted by applicable Law);
(2) other than to effectuate the nomination and election of the Purchaser Designees pursuant to Section 4.10, make or in any way participate or engage 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, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any Subsidiaryof its Subsidiaries, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities 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 other than with respect to the Purchaser Designees, seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(b3) makemake any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of 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 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 in(except as a holder of Common Stock or Preferred Stock) in a merger, directly consolidation, division, acquisition or indirectlyexchange of substantially all assets or equity, alone change of control transaction, recapitalization, restructuring, liquidation or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of similar transaction involving 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;
(e5) acquireexcluding Purchaser Designees, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 control or influence, in any manner, management or the Company Board or any of its Subsidiaries;
(6) make any public proposal 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 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 4.13(b);
(9) enter into any discussions, negotiations, arrangements or understandings with any 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 Subsidiary of its representatives, directly or indirectly, to amend or waive any provision of their respective stockholders or make any public statement with respect this Section 4.13(b), provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the 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 Subsidiary;such request is made in a manner that does not require public disclosure thereof by any Person; or
(h11) seekcontest the validity of this Section 4.13(b) or make, alone initiate, take or participate in concert with othersany demand, to control, change action (legal 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 or any Subsidiary;
(iotherwise) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 4.13(b); provided, however, that nothing in this Section 4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.12 4.13(a) and the other Transaction Documents) or seek permission Transfer (subject to Section 4.9 and the other Transaction Documents) their shares of Preferred Stock or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this StandstillCommon Stock, or otherwise intentionally takeexercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (2) the preemptive rights of any Purchaser Party pursuant to Section 4.11, or solicit(3) the ability of any Purchaser Designee to act in his or her capacity as a member of the Company Board, including, but not limited to, his or cause her ability to vote or encourage others to take, any action inconsistent with the foregoingotherwise exercise his or her fiduciary duties.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Beacon Roofing Supply Inc)
Standstill. Executive Each member of the Shareholder Group agrees that for a period during the Standstill Period he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for respective Affiliates, Associates and agents and any reason, neither Executive nor any of other persons acting on his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its behalf not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with others, acquire by purchase, tender offer, exchange offer, through the acquisition agreement or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company business combination or any Subsidiary, other than the acquisition in the aggregate manner beneficial ownership of less than one-half of one percent of the outstanding voting 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;
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(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 in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities 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 SubsidiariesBoard;
(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 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) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone 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 purchaseentering into any discussions, exchange 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 the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (fother than the Shareholder Group and their Affiliates) arrangewould 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 way participatetransferee 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, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof 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 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) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of any intent, consolidationpurpose, saleplan or proposal to obtain any waiver, tender offeror consent under, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment 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) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember 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 seek, alone or in concert with others, election or appointment to or representation onotherwise, 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 communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement 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;
(j) demand or make a request for inspection of the Company’s records under the Georgia Business Corporation Code;
(k) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jl) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇▇ from engaging in any lawful act in his capacity as a director of the Company that is either approved by the Board or required for ▇▇▇▇▇▇▇ to comply with his fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, Standstill Period and unless specifically invited in writing otherwise approved by the BoardBoard of Directors (excluding any Investor Designees), acting by resolution approved by a majority the Investor will not, and will cause each of all members of the Boardits Affiliates, directors, officers or employees not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):acting alone or as part of a 13D Group:
(a) acquireacquire or agree, offer offer, seek or propose to acquirepropose, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or control of another person or entity, by joining any 13D Group or otherwise, any direct to acquire ownership of any, (x) of the businesses or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities 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 in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company’s securities as a result of any stock splits, stock dividends or other distributions or recapitalizations or offerings made available by the Company to holders of Common Stock, 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) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in within the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 meaning of the Exchange Act) of proxies or consents relating 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 election of directors with respect to the voting 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 voting 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 Subsidiary;
rights to acquire (c) initiatewhether currently, propose upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or “solicit” (as such term is used in the proxy rules any combination of the foregoing) any Equity Securities and Exchange Commission) stockholders of the Company in any voting trust 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’ stockholderssimilar arrangement;
(d) form, form or join or any way participate in the formation of a “group” within the meaning of Section 13(d)(3) 13D Group (other than a 13D Group consisting only of the Exchange Act Investor and its Affiliates) with respect to any voting Equity Securities or equity securities of any Significant Subsidiary, or grant to any Person any proxy with respect to the Company or exercise of voting rights with respect to the Subsidiaries;Shares; or
(e) acquirepublicly announce any intention, offer to acquire plan or agree to acquire, directly arrangement or indirectly, alone finance (or arrange financing for) any Person in concert connection with others, by purchase, exchange or otherwise, (i) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Sources: Investor Rights Agreement (Western Digital Corp), Investor Rights Agreement (Hitachi LTD)
Standstill. Executive agrees that for a period Except as otherwise provided in this Agreement, without the prior written consent of 18 months from the date of Executive’s termination of employment for any reasonTrustees (or following the Distribution Time, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board), acting 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 permitted by resolution approved this Agreement):
(i) 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; (ii) 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 a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardTrust or TPL Corp generally on a pro rata basis), directly or indirectly, 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, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining a group, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company Trust or TPL Corp (other than through a broad-based market basket or index) or any Subsidiaryvoting 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 aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “SoftVest Cap”) or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Mission Cap”, and each 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 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 an amount of Sub-share Certificates or shares of the Common Stock that is greater than 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 acquisition 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 less than one-half of one percent 5.0% or more of the shares of Common Stock outstanding voting at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5.0% or more of the shares of Common Stock outstanding at such time, in each case, unless such Third Party is a passive investor that has not been a “reporting person” on a Schedule 13D and would not, in connection with purchasing or holding of securities of the CompanyTPL Corp, be required to file a Schedule 13D;
(bd) make(i) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person group or entity with respect to the voting agreement 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 kind with respect to any voting securities of the Company Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SubsidiariesSEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Distribution Time), or (ii) deposit any voting securities of the Trust or TPL Corp in any voting trust or subjecting any Trust or TPL Corp voting securities to any arrangement or agreement with respect to the voting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 actseek publicly, alone or in concert with others, to seek to propose amend any provision of the Governance Documents;
(f) demand an inspection of the Trust’s or TPL Corp’s books and records;
(g) make any (i) public or private (other than to the Company Trustees or any Subsidiary or any of their respective stockholders or make any public statement 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, business combinationin 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, consolidation(B) any change in the capitalization, saledividend or share repurchase policy of TPL Corp, tender offer(C) any other change in the Trust’s or TPL Corp’s business, exchange offeroperations, restructuringstrategy, reorganizationmanagement, dissolutiongovernance, liquidationcorporate structure, recapitalization or other transaction involving affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any Subsidiarysecurities 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) seekinitiate, 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, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Trust or TPL Corp or any of their subsidiaries, (iv) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Trust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in concert with others, to control, change the Trust or influence the management, the Board TPL Corp that would reasonably be expected to require a public announcement or policies of the Company or disclosure regarding 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 or any Subsidiarysuch matter;
(i) make enter into any publicly disclosed proposalnegotiations, public statement, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;
(j) publicly make or disclose in any way advance publicly any request or proposal to that the Trust or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(jk) announce an intention take any action challenging the validity or enforceability of this Section 3 or this Agreement, unless TPL Corp is challenging the validity or enforceability of this Agreement; provided, however, that (i) nothing in this Agreement shall prevent the Stockholders or Stockholder Designees from making (A) any factual statement in response to doa Legal Requirement, (B) any communication to the Trust or TPL Corp, or (C) any private communication to enter into any arrangement investors or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do prospective investors in any of the actions restricted Stockholders or prohibited under clauses any of their Affiliates, provided 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 paragraphs (a) through (jk) of this StandstillSection 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 take otherwise participating in any action that might result in such transaction on the Company having to make a public announcement regarding any same basis as the other stockholders of the matters referred 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 in clauses (a) through (j) the other terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, Agreement. Nothing in this Agreement shall limit the exercise in good faith by any action inconsistent with the foregoing.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. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates (a) Except as otherwise expressly provided in this Agreement or persons or entities acting at his direction or with his assistance will, unless as specifically invited approved in writing by 66-2/3% of the Board, acting by resolution approved by a majority of all members of the Board, directly for a period of three (3) years from the date of this Agreement, neither London Bridge, nor any of its Affiliates or indirectlyAssociates, in nor 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 acquireGroup which London Bridge Controls shall, directly or indirectly, alone or in concert with others, :
(i) by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, acquire, agree to acquire or offer to acquire Beneficial Ownership of, or any direct or indirect beneficial interest in Liens with respect to, any voting securities Voting Securities or direct or indirect rights, warrants rights or options to Beneficially Own Voting Securities (including any voting trust certificates representing such securities);
(ii) enter into, propose to enter into, solicit or support any Buyout Transaction or Third Party Offer, or purchase, acquire or propose to purchase, acquire, solicit or securities convertible into support the purchase or exchangeable for, acquisition of any voting securities portion of the business or assets of the Company or any Subsidiaryof its Subsidiaries by London Bridge or by any of its Affiliates or Associates or by any other Person;
(iii) form, join or in any way participate in a Group (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, holding, voting or disposing of or taking any other action with respect to Voting Securities other than the acquisition Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than the Company with respect to any Voting Securities, become a "participant" in an "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A under the aggregate of less than one-half of one percent Exchange Act) relating to the Board, or otherwise attempt to acquire or alter Control of the outstanding voting securities business or affairs of the Company;
(v) deposit any Voting Securities in a voting trust or 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 Total Voting Power of the Company;
(vi) publicly propose to do or permit any of the foregoing, publicly propose to revise any of the standstill provisions of this Agreement, or otherwise take any action challenging the validity or enforceability of the foregoing or which would be inconsistent with the foregoing; or
(vii) assist, advise, encourage, provide funds for, negotiate or otherwise participate with or support any Person with respect to, or otherwise seek to do, any of the foregoing or, except as set forth in Section 2.3 below, participate, assist, advise, encourage, provide funds for or otherwise support any Third Party Offer.
(b) make, Nothing in this Agreement shall (i) prohibit or in restrict London Bridge from responding to any way participate in, directly or indirectly, alone or in concert with others, inquiries from any “solicitation” (Other Holders as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity London Bridge's intention with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (Voting Securities Beneficially Owned by it so long as such term response is used consistent with the terms of this Agreement; (ii) prohibit London Bridge from Beneficially Owning Voting Securities issued as dividends or distributions 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 Actrespect of, 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 purchaseissued upon conversion, exchange or otherwiseexercise of, securities which London Bridge is permitted to Beneficially Own under this Agreement; (iiii) prohibit any employee or agent of the assets, tangible and intangible, London Bridge from purchasing or otherwise acquiring Voting Securities so long as he or she is not a member 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 a Group that includes London Bridge or any of their respective stockholders its Affiliates or make Associates or is not otherwise acting on behalf of London Bridge or any public statement of its Affiliates or Associates; or (iv) prohibit London Bridge from disclosing in accordance with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization its obligations (if any) under the federal securities laws or other transaction involving applicable law (if any) that the Company has become the subject of a Buyout Transaction 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingThird Party Offer.
Appears in 2 contracts
Sources: Governance Agreement (London Bridge Software Holdings PLC), Governance Agreement (Phoenix International LTD Inc)
Standstill. Executive (a) ▇▇▇▇ agrees that for a period of 18 months from the date of Executive’s termination this Agreement until the first anniversary of employment for any reasonthe date on which KLIM no longer has the right to nominate a KLIM Designee to the Board of Directors pursuant to Section 5.1, neither Executive nor any without the prior written approval of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all the disinterested members of the BoardBoard of Directors, KLIM shall not, directly or indirectly, in and shall cause its Affiliates (including any manner (the obligations pursuant to this Section 13 being referred to asPurchaser) not to, the “Standstill”):directly or indirectly:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersoffer to acquire, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct additional shares of Common Stock or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company, other than Conversion Shares issuable or issued upon conversion of the Notes in accordance with the terms thereof;
(bii) make, engage in, or in any way way, participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section Regulation 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 advise or influence in any manner whatsoever any person or entity Person with respect to the voting of, any equity interests of the Company in favor of the election of any 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 Board of Directors by the Company (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation);
(iii) 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 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 Subsidiaryof 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;
(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;
(dvi) form, join or in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act 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 public disclosure with respect to any voting securities of the Company or the Subsidiaries;matters set forth in this Section 4.3(a); or
(eix) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; orforegoing.
(jb) announce an intention to doNotwithstanding Section 4.3(a), or to enter into any arrangement or understanding with others the foregoing provisions of Section 4.3(a): (whether written or orali) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having 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 regarding 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 matters referred Company’s equity securities, or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance, or otherwise), (ii) any Person or group publicly announces or commences a tender or exchange offer to in clauses acquire more than fifty percent (a) through (j50%) of this Standstillany class of the Company’s equity securities, (iii) a change of a majority of the membership of the Board of Directors (excluding any change approved by a majority of the directors serving on Board of Directors prior to such change), or otherwise intentionally take, or solicit, or cause or encourage others to take, (iv) any action inconsistent with Event of Default under the foregoingNotes has occurred and is continuing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Douglas Elliman Inc.), Securities Purchase Agreement
Standstill. Executive The Receiving Company agrees that for a period of 18 commencing on the date hereof and terminating on the date that is eighteen months from the date of Executive’s termination of employment for any reasonhereof, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its Restricted Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardCompany, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(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, purchase or otherwise, any direct or indirect beneficial interest in any more than two percent (2%) of the voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any more than two percent (2%) of the voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits subsidiaries;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage 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 Subsidiaryof its subsidiaries;
(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 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 the Subsidiariesany of its subsidiaries;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any material portion of the assets, tangible and or intangible, of the Company or any Subsidiary 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 Subsidiaryof 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;
(fe) 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 Subsidiaryof 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;
(gf) otherwise actotherwise, alone or in concert with others, to seek to propose to the Company or any Subsidiary of its affiliates 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, restructuring or recapitalization or other transaction involving with the Company or any Subsidiary;
(h) of its subsidiaries or seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company or any Subsidiary, of its subsidiaries or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose any person as a director who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryof its subsidiaries; provided that the foregoing clause (f) shall not be construed to restrict the Receiving Company from taking (or refraining from taking) any action in the ordinary course of its commercial relationship with the Company under the Commercial Agreements or otherwise;
(ig) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillSection 5; or
(jh) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (jg) of this StandstillSection 5; provided that, or take any action that might result in notwithstanding anything to the Company having to make a public announcement regarding any of the matters referred to contrary in clauses (a) through (jh) of this StandstillSection 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 otherwise intentionally take(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, (I) beneficial ownership of (x) 50% or more of the Company’s outstanding capital stock, (y) securities convertible into more than 50% of the Company’s outstanding capital stock or (z) any options, warrants or other rights to acquire more than 50% of the Company’s outstanding capital stock, or solicit(II) control of the Company (within the meaning of Rule 405 under the Securities Act of 1933), or cause or encourage others then the Receiving Company shall be entitled to take, take any action inconsistent with of the foregoingactions set forth in clauses (a) through (h) of this Section 5.
Appears in 2 contracts
Sources: Confidentiality Agreement (Vital Images Inc), Confidentiality Agreement (Magenta Corp)
Standstill. Executive During the period commencing on the date hereof and ending on the Standstill Termination Date, without the prior consent of the Company, each of the GSO Funds agrees that for a period none of 18 months from the date of Executive’s termination of employment for any reasonit, neither Executive GSO, nor any of his affiliates or persons or entities acting at his direction or with his assistance willtheir Affiliates, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquireeffect or seek, offer or propose to acquire, solicit an offer to sell effect:
(i) any acquisition (or agree proposal or agreement to acquire), directly of record or indirectly, alone or in concert with othersbeneficially, by purchasepurchase or otherwise, of any of the Common Stock, or rights or options to acquire interests in any of the Common Stock (or any other beneficial ownership thereof) of the Company (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);
(ii) any business combination, merger, tender offer, exchange offersimilar transaction, through acquisition of all or substantially all of the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities assets of the Company or other extraordinary transaction involving any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent member of the outstanding voting securities of the CompanyCompany Group;
(biii) makeany proposal advanced publicly to seek any restructuring, recapitalization, liquidation, dissolution, exchange offer or in similar transaction involving any way participate in, directly or indirectly, alone or in concert with others, member of the Company Group;
(iv) any “solicitation” of “proxies” (as such term is terms are defined or used in the proxy rules of the Securities 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 Exchange Commission promulgated 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 other actions that may impede or facilitate the acquisition of control of any member of the Company Group 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 equity securities of the Company to become eligible for termination of registration pursuant to Section 14 12(g)(4) of the Exchange Act;
(i) call a special meeting of proxies 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 consents to vote, whether subject to or exempt from the proxy rules, otherwise act or seek to advise, encourage or influence in any manner whatsoever any person or entity act by written consent with respect to the voting Company Group, or (v) make a request for any list of any voting securities holders of Voting Securities or other Company Group books and records; except to appoint and elect up to two directors to the Board pursuant to and in accordance with the rights expressly granted to the holders of the Company or any SubsidiaryPreferred Stock in Section 9(b) of the Statement of Resolutions;
(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 in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with any third party or knowingly instigate, encourage or assist any third party to do, or enter into any discussions or agreements with any third party, in each case, with respect to any voting securities of the Company or the Subsidiaries;
(e) acquireto, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, actions set forth in Section 2.1(a); provided that the inclusion 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 GSO or any of their respective stockholders its Affiliates 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 Affiliates shall not constitute a breach or make violation of this Section 2.1(c); provided, further that such “group” does not take 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;action that is restricted by this Section 2.1.
(hd) seek, alone take any action which is reasonably likely to cause or in concert with others, to control, change or influence the managementrequire GSO, the Board GSO Funds 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having Group to make a public announcement regarding any of the types of matters referred set forth in this Section 2.1; provided that any public disclosure by GSO or any of its Affiliates on Schedule 13D, Schedule 13G or otherwise pursuant to in clauses Section 16 of the Exchange Act or by any “group” (a) through (jwithin the meaning of Section 13(d)(3) of the Exchange Act) of which GSO or any of its Affiliates are members with The Blackstone Group L.P. and/or its other Affiliates shall not constitute a breach or violation of this StandstillSection 2.1(d) if the action disclosed in such filings is otherwise permitted by this Section 2.1; or
(e) publicly disclose any intention, plan or otherwise intentionally take, or solicit, or cause or encourage others to take, any action arrangement inconsistent with the foregoingthis Section 2.1.
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Carrizo Oil & Gas Inc)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the first-year anniversary hereof (such period, neither Executive nor any of his affiliates or persons or entities the “Restricted 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 at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the U.S. Securities and Exchange Commission promulgated pursuant (the “SEC”), but without regard to Section 14 of the Exchange Act) exclusion set forth in Rule 14a-1(l)(2)(iv)), involving the Company, 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 election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) 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 in 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 consents;
(b) knowingly encourage, advise or matters presented influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, (i) with respect to the Companyvoting 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 its Subsidiaries’ stockholders;(ii) in conducting any type of referendum, binding or non-binding, involving the Company (in each case, other than such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(dc) form, join or participate in any way participate in a any “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any voting securities Voting Securities, other than solely with other Affiliates of the Company Blackwells with respect to Voting Securities now or the Subsidiaries;hereafter owned by them;
(ed) acquire, offer to acquire or offer, seek or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, (i) or direct any third party in the acquisition of, any Voting Securities or assets of the assetsCompany, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants 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 (i) identified by such Blackwells Party in its public filings with the SEC prior to the date of this 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 Subsidiary;of its Affiliates, directly or indirectly, through swap or hedging transactions or otherwise;
(f) arrangemake, or in any way participateparticipate with any other Person (other than (i) the voting of Voting Securities held by any Blackwells Party prior to the date of this Agreement and identified by such Blackwells Party in its public filings with the SEC prior to the date of this Agreement and (ii) the receipt of consideration on the same terms as other holders of Company securities), directly or indirectly, in any, or any financing for the purchase of any voting securities proposal that would reasonably be expected to result in any, tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or securities convertible or exchangeable into or exercisable for any voting securities or assets of similar transaction involving the Company or its subsidiaries or its or their securities or assets; or make, directly or indirectly, any Subsidiary;
(g) otherwise actproposal, either alone or in concert with others, to seek to propose to the Company or the Board that would reasonably be expected to require a public announcement regarding any Subsidiary 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 their respective stockholders or make any public statement Blackwells, with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or other transaction involving the Company or any Subsidiary;hereafter owned by them;
(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 (A) seek, alone or in concert with others, election or appointment to to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, the Board (B) seek, alone or in concert with others, the removal of any member of the Board, or propose any matter to be voted upon by the stockholders (C) conduct a referendum of the Company or any Subsidiary;shareholders;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise) for consideration by the Company’s shareholders;
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to amendbooks and records;
(k) institute, waive solicit, assist or terminate join any provision 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 4; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation against the Company to enforce the provisions of this Standstill or seek permission to or make any public announcement Agreement, (ii) making counterclaims with respect to any provision proceeding initiated by, or on behalf of, the Company against a Restricted 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 “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 StandstillBlackwells Parties or any of the Blackwells Representatives (as such term is defined below) receives any Legal Requirement, such Blackwells Parties or Blackwells Representatives shall give prompt written notice of such Legal Requirement to the Company; orprovided, however, that this clause (k) shall not require any Blackwells Party to opt out of any class action lawsuits against the Company not initiated in violation of this clause (k) (“Class Actions”) and to which such Blackwells Party is a party solely as a result of the Blackwells Parties’ ownership of Voting Securities during the class period applicable to such Class Actions;
(jl) announce an intention to dopublicly disclose any intention, plan or to arrangement inconsistent with any provisions of this paragraph 4;
(m) enter into any arrangement negotiations, agreements or understanding understandings with others (whether written or oral) any third party to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might 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 terms of this Agreement, in each case which would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, such request or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingproposal.
Appears in 2 contracts
Sources: Letter Agreement (Blackwells Capital LLC), Letter Agreement (Supervalu Inc)
Standstill. Executive Until the Termination Date, the Investor Group agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonthat, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willexcept as otherwise specifically provided in this Agreement, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members no member of the Board, directly or indirectlyInvestor Group shall, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer way or propose to acquire, solicit an offer to sell or agree to acquirein any capacity, 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 interest except for such actions as Nominee may take in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities his capacity as a director of the Company in support of transactions and initiatives approved or any Subsidiary, other than undertaken by the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;Board:
(b) a. make, or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of (the Exchange Act“SEC”)) 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 election or removal of any voting securities of the Company directors or any Subsidiaryother matter or proposal;
(c) b. initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of any stockholder proposals proposal, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange ActAct or otherwise;
c. seek to call, or otherwiseto request the call of, or cause call a special meeting of the stockholders of the Company; or, in its capacity as a stockholder, make a request for or encourage take any action to obtain or attempt to cause or encourage others to initiate retain any such stockholder proposal; or otherwise communicate with list of 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’ stockholdersother Company records;
(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) any of the 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 d. 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 to, or representation on, or to nominate or propose the nomination of any candidate to, the Board Board, except as specifically contemplated in Section 1; or seek the removal of any member of the Board, or propose a change in the composition or size of the Board;
e. form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act, with respect to any matter Voting Securities, deposit any Voting Securities into a voting trust or subject any Voting Securities to any voting agreement (other than solely with other members of the Investor Group with respect to Voting Securities now or hereafter owned by them in accordance with the terms of this Agreement) or take any other action that would limit or otherwise restrict the ability of the Investor Group to vote or cause to be voted upon the Investor Voting Securities held from time to time in accordance with this Agreement;
f. with respect to the Company or the Voting Securities, (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 stockholders 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 assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Subsidiaryof its Affiliates or Associates;
(i) make i. except at the request of the Board, enter into any publicly disclosed proposalarrangements, public statement, public inquiry understanding or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing;
j. make any public statement or public disclosure regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the foregoingprovisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or make would require waiver, amendment, nullification or disclose any request or proposal to amendinvalidation of, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, Agreement or take any action that might result in could require the Company having to make a any public announcement regarding disclosure relating to any of such intent, purpose, plan, proposal or condition; or
k. take any action challenging the matters referred to in clauses (a) through (j) validity or enforceability of this StandstillSection 2, or otherwise intentionally take, request the Company or solicit, Board to agree to amend or cause to waive any provision of this Section 2 either publicly or encourage others in a manner that is reasonably likely to take, any action inconsistent with require the foregoingCompany to disclose the request publicly.
Appears in 2 contracts
Sources: Board Nomination Agreement (Magnetek, Inc.), Board Nomination Agreement (Fundamental Global Partners)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, directly during the Standstill Period, he or indirectlyit will not, in any manner (the obligations pursuant to this Section 13 being referred to asand he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, the “Standstill”):and will cause his or its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities shares of the CompanyCommon Stock;
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(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 in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities 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 Subsidiariesmeaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2011 Annual Meeting or 2012 Annual Meeting as set forth in this Agreement;
(e) acquireseek, offer in any capacity other than as a member of the Board, to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone 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 purchasethis Agreement;
(f) effect or seek to effect, exchange 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 the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution 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 other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment 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) 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 publicly disparage any member of the BoardBoard or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Navarre Corp /Mn/)
Standstill. During the period commencing with the Effective Date and ending August 1, 2023 (the “Standstill Period”), the Executive agrees that for a period will not, and will cause each of 18 months from his Affiliates (or any other person or entity (including any Associate) acting on behalf of or at the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or otherwise with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardExecutive’s encouragement or support) not to, 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 obligations pursuant Board or any committee thereof empowered to this Section 13 being referred to as, the “Standstill”take such action):
(a) acquire, offer offer, seek 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, ownership (beneficial or otherwise, any direct or indirect beneficial interest and in any voting securities manner) of any debt or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting equity securities of the Company (including Common Stock) or any Subsidiaryrights or options to acquire such ownership or securities convertible or exchangeable into such ownership (including Redeemable Warrants), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting each case excluding securities of the CompanyCompany issued as a dividend or otherwise in respect of securities of the Company otherwise owned by any such person or with respect to any;
(b) makeacquire, offer, seek or propose to acquire, or agree to acquire, ownership (beneficial or otherwise, and in any way manner) of any instruments, real or synthetic, that give Executive or his Affiliates or Associates (or any other person or entity acting on behalf of or at the Executive’s direction) the right to vote or direct the voting of any securities of the Company, in each case excluding securities of the Company issued as a dividend or otherwise in respect of securities of the Company otherwise owned by any such person and excluding any Earnout Shares and/or Adjustment Escrow Stock;
(c) propose or effect any tender or exchange offer, merger, consolidation, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company or its subsidiaries;
(d) (i) make or participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of defined under the Exchange Act) of proxies or consents with respect to vote, whether subject 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) seek or knowingly encourage election to or exempt from representation on the proxy rulesBoard, or nominate or recommend the nomination of any candidate to the Board, or the removal of any member of the Board, or call or seek to advisecall, encourage 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 in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or Company; (v) engage in any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in course of conduct with the proxy rules purpose of the Securities and Exchange Commission) stockholders causing shareholders of the Company or to vote contrary to the recommendation of the Board on 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 matter presented to the Company’s shareholders for their vote or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within challenging the meaning of Section 13(d)(3) policies 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) any of the assets, tangible and intangible, of the Company or any Subsidiary Company; 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;
(gvi) otherwise act, alone or in concert with others, to seek to propose to control or influence the Company management, Board, policies or affairs of the Company;
(e) form, join or in any Subsidiary or any of their respective stockholders or make any public statement way participate in a “group” (as defined under the Exchange Act) with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the 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 Subsidiaryother 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) seek, alone make a request (public or otherwise) that the prohibitions set forth in concert with others, this Section 16 be waived or that the Company take any action which would permit the Executive or his Affiliates or Associates to control, change or influence the management, the Board or policies take any 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 actions prohibited by the stockholders of the Company or any Subsidiarythis Agreement;
(i) make any publicly disclosed proposal, public statement, public inquiry disclose (whether via social media platform or public disclosure of otherwise) any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, knowingly encourage or to enter into assist any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do other Person in undertaking any of the actions restricted foregoing.
(k) In addition, during the Standstill Period, the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or prohibited under clauses by proxy at each meeting of the Company’s stockholders (a“Stockholder Meeting”) through and either (ji) 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 favor of any proposal recommended by the Board, or (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 protest”. In addition, simultaneously with the execution of this StandstillAgreement, the Executive 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 take any action that might result (bb) abstain from voting the Remaining Executive Shares, such Irrevocable Proxy to become effective only in the Company having event that and for so long as the Executive fails to make (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 public announcement regarding any Change in Control occurs prior to the end of the matters referred 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 clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingControl.
Appears in 2 contracts
Sources: Settlement Agreement (Electric Last Mile Solutions, Inc.), Settlement Agreement (Electric Last Mile Solutions, Inc.)
Standstill. Executive agrees that for a period of 18 months from Except with the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, at all times during the Standstill Period (as defined below in Section 21), each Investor agrees, severally, but not jointly, not to, directly or indirectly, and will cause each of its respective Affiliates (as defined in any manner (the obligations pursuant to this Section 13 being referred to as21) not to, the “Standstill”):directly or indirectly:
(a) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist, by purchasefacilitate or encourage any other individual, tender offergeneral or limited partnership, exchange offercorporation, through the acquisition limited liability or control unlimited liability company, joint venture, estate, trust, group, association or other entity of another person any kind or entitystructure (collectively, a "Person") to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any direct or indirect beneficial interest "solicitation" of "proxies" (as such terms are used in the proxy rules of SEC) to vote any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities Voting Securities of the Company or consent to any Subsidiary, other than the acquisition in the aggregate action from any holder of less than one-half of one percent any Voting Securities of the outstanding Company or conduct or suggest any binding or nonbinding referendum or resolution or seek to advise, encourage or influence any Person with respect to the voting securities of or the granting of any consent with respect to any Voting Securities of the Company;
(b) makepropose or nominate, or in cause or encourage any way participate in, directly Person to propose or indirectly, alone or in concert with othersnominate, any “solicitation” (as such term is used in candidates to stand for election to the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesBoard, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting removal of any voting securities member of the Company or any SubsidiaryBoard;
(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 otherwise participate in a “any "partnership, limited partnership, syndicate or other group” " (other 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 securities 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 SubsidiariesCommon Stock (other than Affiliates of the Investors);
(d) seek to call, or to request the call of, or call a special meeting of the stockholders of the Company, or make a request for a list of the Company's stockholders or other Company records;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 control or 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 to seek representation on, or to influence or seek to influence, 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) 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; (ii) acquisition of any interest in any material asset or business of the Company or any Subsidiaryof its subsidiaries; (iii) merger, acquisition, share exchange or otherwise seekother business combination involving the Company or any of its subsidiaries; or (iv) recapitalization, alone restructuring, liquidation, dissolution or in concert other extraordinary transaction with others, election respect to the Company or appointment to any of its subsidiaries or representation on, material portion of its or to nominate or propose their businesses;
(g) other than through open market broker sale transactions where the nomination of any candidate to, the Board or the removal of any member identity of the Boardpurchaser is unknown, sell, offer or propose agree to sell directly or indirectly, through any matter to be voted upon by the stockholders swap or hedging transaction or otherwise, any security of the Company or any Subsidiaryright 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 in a transaction approved by the Board;
(h) request that the Company or any of its Representatives amend or waive any provision of this Section 3; or
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with any of the foregoing. Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including any New Nominee, from exercising his or her rights and fiduciary duties as a director of the Company.
Appears in 2 contracts
Sources: Director Nomination Agreement (Springowl Associates LLC), Director Nomination Agreement (Forestar Group Inc.)
Standstill. Executive During the period commencing on the date hereof and ending on the Standstill Termination Date, without the prior consent of the Company, each Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates will (and each Investor will cause its Affiliates to not), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquireother than the acquisition of additional shares of Common Stock 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 owned by the Investors or their respective Affiliates, acquire (or propose to acquire, solicit an offer to sell or agree to acquire), directly of record or indirectly, alone or in concert with othersbeneficially, by purchasepurchase or otherwise, any 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, through 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 may impede or facilitate the acquisition or of control of another person or entityany member of the Company Group by any Person, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiary, other than the acquisition in the aggregate securities exchange; or (F) causing a class of less than one-half of one percent of the outstanding voting equity securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules Company to become eligible for termination of the Securities and Exchange Commission promulgated registration pursuant to Section 14 12(g)(4) of the Exchange Act;
(v) any request or proposal to waive, terminate or amend the provisions of proxies this Agreement if such request or consents to vote, whether subject to proposal would require the Investor 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 member of the Company or any SubsidiaryGroup to make a public announcement;
(cvi) initiateany proposal, propose arrangement or “solicit” (as such term other statement that 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 inconsistent with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation terms of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;this Agreement, including without limitation this Section 2.1; or
(d) form[reserved]
(e) knowingly instigate, join encourage or assist any way participate in third party (including without limitation forming a “group” (within the meaning of Section 13(d)(3) of the Exchange Act 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oralsuch third party) to do, or to financeenter into any discussions or agreements with any third party with respect to, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses set forth in Section 2.1(c); or
(af) through (j) of this Standstill, or take any action that might result in which would require any member of the Company having Group to make a public announcement regarding any of the matters referred to actions set forth in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 2.1(c).
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Sanchez Energy Corp)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, Standstill Period and unless specifically invited in writing otherwise approved by the BoardBoard of Directors (other than the Series B Designees), acting by resolution approved by a majority each Holder will not, and will cause each of all members of the Boardits Affiliates not to, directly or indirectly, 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 acquire or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition by joining a partnership, limited partnership, syndicate or control of another person or entity, other 13D Group or otherwise, (A) Beneficial Ownership of any direct Voting Securities, Derivative Securities or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting other securities of the Company or any Subsidiaryrights to acquire (whether currently, other than upon lapse of time, following the acquisition in satisfaction of any conditions, upon the aggregate occurrence of less than one-half of one percent any event or any combination of the outstanding voting foregoing) any Voting Securities, Derivative Securities or any other securities of the Company, other than (i) the acquisition of the shares of the Series B Stock pursuant to the Purchase Agreement, (ii) 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 other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities or Derivative Securities generally, but only to the extent any 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) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " (as such term is used in within the proxy rules meaning of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 14a-1 under the Exchange Act) of proxies or consents relating 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 election of directors with respect to the voting of Company, or become a "participant" in any voting securities "election contest" (within the meaning of the Company or any SubsidiaryExchange 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;
(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 induce or attempt to cause or encourage others induce any other Person to initiate any such stockholder proposal; proposal to seek election to or otherwise communicate with seek to place a representative on the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation Board of proxies or consents or matters presented Directors (except pursuant to the Company’s Certificate of Designations) 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) any of the 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 BoardBoard of Directors of the Company);
(d) in any manner, agree, attempt, seek or propose to deposit any matter to be voted upon by the stockholders Voting Securities, Derivative Securities or any other securities of the Company or any Subsidiaryrights 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 Voting Securities, Derivative Securities or other securities of the Company in any voting trust or similar arrangement (other than any such voting trust or similar arrangement among two or more Holders);
(ie) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of announce any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, ; or
(f) form or make or disclose any request or proposal to amend, waive or terminate any provision join in the formation of this Standstill or seek permission to or make any public announcement a 13D Group with respect to any provision Voting Securities, other than any such "group" consisting exclusively of Holders and any Affiliates of the Standstill; orHolders;
(jg) announce an intention to doexcept as provided in Section 4.2, finance (or to enter into arrange financing for) any arrangement or understanding Person in connection with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing; provided, however, that nothing in this Section 3.1 shall (i) limit any rights of the Investors under each of the Purchase Agreement, Certificate of Designations, and Registration Rights Agreement, (ii) prohibit any individual who is serving as a Director, solely in his or prohibited under clauses her capacity as a Director, from (ax) through exercising his or her fiduciary duties, (jy) taking any action or making any statement at any meeting of this Standstillthe Board of Directors or of any committee thereof, or take (z) making any action that might result in statement or disclosure required under federal securities Laws or other applicable Law, (iii) restrict any disclosure or statements required to be made by any Investor under applicable Law, or (iv) limit the Company having to make a public announcement regarding any rights of the matters referred Investors pursuant to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 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. Executive agrees that 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 18 months two years from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
Agreement: (a) purchase or otherwise acquire, offer or propose to acquireoffer, solicit an offer to sell seek, propose, or agree to acquire, directly ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any (i) securities of the other Party or indirectlyany 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 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, by purchase, tender offer, exchange offer, through the acquisition or to control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person the management, the board of directors or entity with respect to the voting of any voting securities policies of the Company or any Subsidiary;
Public Counterparty, including a proposal pursuant to Rule 14a-8; (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) any of the 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) arrangemake, or in any way participate, directly or indirectly, in any financing for “solicitation” of “proxies” (as such terms are used in the purchase proxy rules under the Exchange Act and the regulations thereunder) to vote, or seek to advise or influence any Person with respect to the voting of any voting securities or securities convertible or exchangeable into or exercisable for of a Public Counterparty; (d) make any voting securities or assets of the Company proposal or any Subsidiary;
(g) otherwise actstatement regarding any proposal, alone whether written or in concert with othersoral, to seek to propose to the Company board of directors of a Public Counterparty or any Subsidiary 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 stockholders Exchange Act Affiliates, including any acquisition, tender or make any public statement with respect to any exchange offer, merger, sale of assets or securities, or other 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 or any Subsidiary;
unless (i) make any publicly disclosed the Public Counterparty’s board of directors or its designated representatives have requested in advance the submission of such a proposal, public statement(ii) such proposal is directed to the Public Counterparty’s board of directors or its designated representatives, public inquiry or public disclosure of any intention, plan, or arrangement and (whether written or oraliii) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to such proposal is approved in advance by the Public Counterparty’s board of directors; or (e) providing financing (including guarantees), in whole or in part, to any provision of the Standstill; or
(j) announce an intention Person with respect to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (aa)-(d) through (j) above of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5.7.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spruce Power Holding Corp), Asset Purchase Agreement (New Jersey Resources Corp)
Standstill. Executive 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 a period the 2028 Annual Meeting of 18 months from Stockholders of the date of Executive’s termination of employment for any reasonCompany (such period, the “Standstill Period”), neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner manner, acting alone or in concert with others, take any of the following actions without the prior written consent (email being sufficient) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Company or its Board of Directors (as defined below):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire 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, alone or in concert with others, by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining or entitymaintaining 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 any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities capital stock of the Company or any Subsidiary, other than voting rights decoupled from the acquisition underlying voting securities that would result in the aggregate of less ADAR1 Parties and their Affiliates owning, controlling or otherwise having any beneficial or other ownership interest of, in the aggregate, more than one-half of one percent 4.9% of the outstanding voting securities shares of the CompanyCommon Stock outstanding at such time;
(b) other than in accordance with the recommendations of the Company’s Board of Directors (the “Board of Directors”), (i) make, submit, initiate, encourage or participate in (or provide notice of, or publicly disclose, an intention to do any way participate inof the foregoing) any proposal with respect to, or (ii) engage, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies, consents or consent revocations or otherwise become a “participant in a solicitation” (as such term is used defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) with respect to: (A) any change in the proxy rules 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 any election contest or removal contest with respect to the Company’s directors, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Securities and Exchange Commission promulgated 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 14 12(g)(4) of the Exchange Act, (F) of proxies any stockholder proposal pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or consents to vote, whether subject to bringing any other business at or exempt from the proxy rulesbefore any Stockholder Meeting, or seek (G) any “withhold” or similar campaign with respect to adviseany proposal for consideration or business brought at or before any Stockholder Meeting;
(c) recommend, request, induce, encourage or influence any 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 manner whatsoever any person or entity 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 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 voting securities 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 Subsidiaryof 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;
(cf) initiateinstitute, propose solicit, assist or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of join any litigation, arbitration or other proceeding against or involving the Company or any Subsidiary for of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than to (x) enforce the approval provisions of stockholder proposals whether made pursuant this Agreement or the Confidentiality Agreement (as defined in Section 4.5(e) or (y) any counterclaims with respect to Rule 14a-8 any proceeding initiated by or Rule 14a-4 under on behalf of 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 Company in violation of this Agreement (and the Company’s or its Subsidiaries’ stockholders or others in connection with Company agrees that this Section 4.2(f) (including the solicitation of proxies or consents or matters presented exceptions thereto) shall apply mutatis mutandis during the Standstill Period to the Company’s or Company and its Subsidiaries’ stockholdersdirectors, officers, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the ADAR1 Parties);
(dg) form, join in, maintain or in any other way participate in a “partnership, limited partnership, syndicate or other ‘group’” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities the capital stock of the Company (other than a “group” that consists solely of all or some of the Subsidiariespersons parties to this Agreement or Affiliates thereof);
(eh) 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 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, directly offer, seek or indirectlypropose to acquire, alone or in concert with others, by purchase, exchange or otherwise, ownership (iincluding beneficial ownership) of any of the assets, tangible and intangible, assets or businesses of the Company or any Subsidiary of its subsidiaries or (ii) direct or indirect rights, warrants any rights or options to acquire any such assets of the Company or business from any Subsidiaryperson;
(fj) arrange, or in any way participate, directly or indirectly, in any financing for other than at the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets express written request of the Company or any Subsidiary;
(g) otherwise actBoard of Directors, alone or in concert with otherspropose, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to a merger, business combination, consolidation, saleacquisition of control, tender offer, or exchange offer, restructuringpurchase, reorganizationsale, license or other transfer of assets or securities, any other business combination, dissolution, liquidation, recapitalization reorganization, spin-off or other spin-out, share repurchase or similar transaction involving the Company Company, its subsidiaries or any Subsidiaryits business;
(hk) seeksell, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiaryassign, or otherwise seek, alone transfer or in concert with others, election or appointment to or representation ondispose 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 nominate 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 propose otherwise having any beneficial or other ownership interest in the nomination 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 candidate toperson who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the Board or the removal aggregate of any member more than 4.9% of the BoardCompany’s outstanding capital stock at such time, (ii) is listed on SharkWatch50 or propose any matter has otherwise directly or indirectly run or publicly disclosed an intention to be voted upon by run a proxy contest or publicly submitted stockholder nominations or proposals with respect to another publicly-traded company within the stockholders last five years or (iii) is as of the Company or any SubsidiaryEffective Date a Schedule 13D filer with respect to the Company;
(il) make any publicly disclosed proposaldisclose publicly, public statementor privately in a manner that could reasonably be expected to become public, public inquiry or public disclosure of any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, foregoing or make or disclose any publicly request or advance any proposal to amend, modify or waive or terminate any provision of this Standstill Agreement;
(m) engage in any short sale or seek permission to any purchase, sale or make grant of any public announcement 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;
(n) publicly take any action challenging the validity or enforceability of any provision of the Standstillthis Agreement; or
(jo) announce an intention to doparticipate in any negotiations, or to enter into any arrangement discussions, agreements, arrangements or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any person concerning any of the actions restricted foregoing (other than this Agreement) or prohibited under clauses (a) through (j) of this Standstill, encourage or take solicit any action that might result in the Company having person to make a public announcement regarding undertake any of the matters referred to in clauses (a) through (j) of this Standstill, foregoing activities or otherwise intentionally take, or solicit, take or cause or encourage others to take, 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 such 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, officers, general partners, employees and attorneys of such party and of its Affiliates, or (z) tendering shares, receiving payment for shares or otherwise participating in any transaction that is consummated following the Closing involving a third party approved by the Board of Directors on the same basis as other stockholders of the Company.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ADAR1 Capital Management, LLC), Stock Purchase Agreement (Keros Therapeutics, Inc.)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by this Agreement until the Board, acting by resolution approved by a majority of all members expiration of the BoardCommitment Period, each of the Investors shall not, and shall cause its Affiliates (collectively, “Restricted Persons”) and shall instruct their respective Representatives not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) 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 election or removal of any voting securities directors of the Company or any Subsidiary;
(c) initiate, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) 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 in 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’ stockholdersconsents;
(db) 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) any of the 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 to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, the Board except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board, or propose any matter to be voted upon by the (iii) conduct a referendum of stockholders of the Company or (iv) seek to call, request the call of or join with any Subsidiaryother stockholder in a request to call, a special meeting of the Company’s stockholders;
(c) make or 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) with respect to the giving or withholding of any 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 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 Investors with respect to Voting Securities;
(f) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of, 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, if such acquisition, offer, agreement or transaction would result in the Investors having beneficial ownership of more than 10.0%, or economic exposure to more than 10.0%, of the outstanding Company Shares;
(g) enter into a voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement, other than (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;
(h) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, or (ii) any waiver, amendment or modification to the Governing Documents of the Company;
(i) grant any proxy, consent or other authority to vote with respect to the election of directors other than to the named proxies included in the Company’s proxy card for an annual meeting;
(j) engage in, or offer to or agree to engage in, directly or indirectly, any transaction (including through swap or 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 disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillparagraph 8; or
(jq) announce an intention make any request or submit any proposal to doamend 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. Notwithstanding anything to enter into any arrangement the contrary in this Agreement, nothing in this paragraph 8 shall prohibit or understanding restrict the Investors from: (i) communicating privately with others (whether written the Board or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted Company’s officers regarding any matter in a manner that does not otherwise violate this Section 8; (ii) taking any action necessary to comply with any law, rule or prohibited under clauses (a) through (j) of this Standstillregulation or any action required by any governmental or regulatory authority or stock exchange that has, or take may have, jurisdiction over the Investors or any action of their respective Affiliates in a manner that might result does not otherwise violate this paragraph 8; or (iii) communicating with its investors in the Company having quarterly or annual letters provided such communications are subject to make a public announcement regarding standard confidentiality obligations. The Investors acknowledge and agree that they shall be liable for any breach by their respective Affiliates or Representatives of any of the matters referred to in clauses (a) through (j) terms of this StandstillAgreement applicable to such Representatives. In addition, or otherwise intentionally takethe Company agrees to provide the Investors, or solicitupon the Investors’ reasonable request, or cause or encourage others to take, any action inconsistent with the foregoingsame degree, type and frequency of access to the Board and members of the Company’s senior management that is customarily provided to other stockholders with similarly sized shareholdings in the Company.
Appears in 2 contracts
Sources: Letter Agreement (PHH Corp), Letter Agreement (EJF Capital LLC)
Standstill. Executive agrees that for For a period of 18 months from commencing on the date hereof and ending on the earlier of Executive(i) thirty-six (36) months following the effective date of the Merger and (ii) the date upon which the Shareholder no longer has the right to nominate at least one (1) director to the Company’s termination board of employment for directors (the “Board”) pursuant to the Governance Agreement, the Shareholder shall not, without the prior written consent of the Company, directly or indirectly:
a. acquire, offer to acquire, or agree to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (“Exchange Act”)), by purchase or otherwise, any reasonadditional shares of Common Stock, neither Executive nor or any rights or options to acquire any such securities or any securities convertible into such securities; provided that, in the event that at any time, whether due to an increase in the total outstanding shares of his affiliates or persons or entities acting at his direction or with his assistance willCommon Stock, unless specifically invited in writing a sale of shares of Common Stock by the Board, acting by resolution approved by a majority of all members Shareholder or otherwise (made in compliance with the provisions of the Boardlock-up agreement dated as of the date hereof with the Shareholder, as same may be amended from time to time (the “Lock-Up Agreement”), the Shareholder beneficially owns, directly or indirectly, in Common Stock representing less than the Shareholder Maximum Ownership Percentage, the Shareholder may acquire additional shares of Common Stock or rights or options to acquire any manner such securities or any securities convertible into such securities; provided, further, that the Shareholder’s ownership percentage will not exceed the Shareholder Maximum Ownership Percentage;
b. call or seek to call any meeting of the stockholders of the Company;
c. submit, or participate with others that submit, any stockholder proposals for the vote or consent (the obligations collectively, “vote”) of stockholders (whether pursuant to this Section 13 being referred to as, Rule 14a-8 under 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 entityExchange Act, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities ) of the Company or any Subsidiary, other than proposal for consideration by the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(b) d. solicit “proxies” or make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Commission) for proxies for any stockholder proposals of the Company or nominations of candidates for election as directors or trustees of the Company;
e. form or join in a partnership, syndicate or other group, including, without limitations, a “group” as defined under Section 14 13(d) 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 Shareholder Shares, or deposit any Shareholder Shares in a voting of any voting securities trust, arrangement or agreement, except for such actions that may be permitted under the Lock-Up Agreement;
f. explicitly or implicitly, publicly or privately: (i) encourage, recommend, advise, finance or urge others to put forward stockholder proposals 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 nominations with respect to directors/trustees of the Company or enter into any Subsidiary arrangements with any other person in connection with any of the foregoing as they relate to the Company; (ii) indicate support or approval for the approval of any stockholder proposals whether made pursuant or nominations relating to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause Company that are not otherwise approved by the Board in accordance with the Articles; (iii) solicit or encourage others to initiate vote against any such stockholder proposalmatter recommended by the Board in accordance with the Articles; 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;
(div) 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, act alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options others to acquire any assets of the Company or any Subsidiary;
(f) arrangeseek control of, 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, effect a change or influence the managementto, the Board management or policies of the Company or any SubsidiaryCompany, or unless 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, approved by 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent in accordance with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillArticles; or
(j) announce an intention g. take or seek to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage seek to cause or solicit others to take, take any action inconsistent with any of the foregoing as they relate to the Company. Notwithstanding the foregoing, this Agreement will not be construed to preclude, prohibit, restrict or otherwise require the Shareholder to take any actions that are permitted or contemplated by the Governance Agreement or the Company’s Articles.
Appears in 2 contracts
Sources: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp), Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)
Standstill. Executive Each Investor agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons Associates or entities acting at his direction or with his assistance Family Members will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates and Family Members not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, take any of the following actions or advise, recommend, request, encourage, solicit, influence or induce any other person to take any of the following actions, or announce any intention to take any of the following actions:
(a) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by purchasethe Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, tender offer, exchange offer, through as amended (the acquisition or control of another person or entity“Exchange Act”), or otherwise, or any direct notice of nomination or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireother business for consideration, or securities convertible into or exchangeable for, nominate any voting securities of candidate for election to the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(b) make, or in any way participate inengage, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject to or exempt from the proxy rules, induce or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of any voting securities stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any Subsidiaryvoting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(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 seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of 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) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(e) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any the voting securities stock of the Company (other than a “group” that consists solely of all or some of the Subsidiaries;
(e) acquire, offer persons parties to acquire this Agreement or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company their respective Affiliates or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryAssociates);
(f) arrange, or in deposit any way participate, directly or indirectly, in any financing for the purchase shares of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets stock of the Company in a voting trust or similar arrangement or subject any Subsidiaryshares 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) otherwise act, alone vote for any nominee or in concert with others, to seek to propose nominees for election to the Company Board, other than those nominated or any Subsidiary or any supported by the Board not in violation 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 Subsidiaryterms of this Agreement;
(h) seekexcept as specifically provided in Section 1 of this Agreement, alone seek to place a representative or in concert with othersother Affiliate, to control, change Associate or influence the management, nominee on 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 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) acquire or agree, offer, seek or propose to acquire, or propose any matter cause to be voted upon by acquired, ownership (including beneficial ownership) of any of the stockholders assets or business of the Company or any Subsidiaryrights 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 waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the 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;
(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), other than to enforce the provisions of this Agreement;
(m) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(n) enter into any negotiations, discussions, agreement, arrangement 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. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Investors from: (A) communicating privately with the Board or the Chief Executive Officer of the Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) communicating privately with stockholders of the 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 Investors or any of their respective Affiliates or Associates, provided that a breach by Investor of this Agreement is not the cause of the applicable requirement. As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry the terms “Affiliate” and “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 public disclosure Associates of any intention, plan, or arrangement (whether written or oral) inconsistent with person subsequent to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision date of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement;
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Term the Investor and its Affiliates (collectively, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe “Standstill Parties”) shall not (and the Investor shall cause its Affiliates not to), unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardBoard of Directors (or any committee thereof) of the Company, directly or indirectly, 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 more than one percent (1%) of any class or in concert with others, by purchase, tender offer, exchange offer, through the acquisition series of any equity or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting debt securities of the Company or any Subsidiaryof its subsidiaries (whether by purchase, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companybusiness combination, merger, consolidation, share exchange, joint venture or otherwise);
(b) make, solicit proxies or consents or become a “participant” in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents with respect to vote, whether subject securities of the Company or initiate any stockholder proposal with respect to or exempt from the proxy rules, or Company;
(c) seek to advise, encourage control or influence the management, Board of Directors or policies of the Company or any of its subsidiaries, or take action for the purpose of convening a stockholders meeting of the Company, other than in any manner whatsoever any person or entity the ordinary course of business with respect to (i) the voting Collaboration Agreement or (ii) any other commercial agreement between the Investor or an Affiliate of the Investor and the Company or any voting of its Affiliates;
(d) make any proposal or any public announcement (including, for the avoidance of doubt, indirectly by means of communication with the press or media) relating to a tender or exchange offer for securities of the Company or any Subsidiaryof its subsidiaries or relating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation, restructuring, recapitalization, or similar transaction involving the Company or its subsidiaries, or take any action that might require the Company to make a public announcement regarding any of the foregoing;
(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;
(de) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act (other than with respect to any the Investor’s Affiliates) for the purpose of acquiring, holding, voting or Disposing of 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) any of the assetsits subsidiaries or taking any other actions restricted or prohibited under clauses (a) through (d) of this Section 2.1, tangible and intangible, of the Company or take any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;steps in connection therewith; or
(f) arrangeenter into any discussions, negotiations, arrangements or in understandings with any way participate, directly or indirectly, in any financing for Third Party (other than with 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;
(gInvestor’s Affiliates) 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (je) of this StandstillSection 2.1. Nothing in this Agreement shall restrict the Investor or any of its representatives from (1)(a) from the date of this Agreement until June 30, 2016, making a request directly to the Board of Directors of the Company for written consent to submit a proposal regarding a possible business combination involving the Company and the Investor or any of their respective Affiliates (a “Transaction”) directly to the Board of Directors of the Company on a confidential basis, which request shall be considered in good faith (provided that if the Company believes that the Investor has made a confidential proposal not meeting the requirements of clause (a), the Company will provide the Investor notice of such violation and the Investor shall have the opportunity to withdraw or otherwise negate such proposal to ensure compliance with the provisions of this Section 2.1), or take any action that might result in (b) following June 30, 2016, making a proposal regarding a possible Transaction directly to the CEO or Board of Directors of the Company having on a confidential basis, (2) acquiring or offering to make a public announcement regarding acquire, seeking, proposing or agreeing to acquire any Third Party that owns any securities or assets of the matters referred to Company or (3) acquiring any securities of the Company in clauses (a) through (j) connection with any mutual fund, pension plan or employee benefit plan managed on behalf of this Standstill, employees or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with former employees of the foregoingCompany.
Appears in 2 contracts
Sources: Investor Agreement (TESARO, Inc.), Stock Purchase Agreement (TESARO, Inc.)
Standstill. Executive agrees that (a) Subject to the terms and conditions of this Section 5.1, for a period of 18 months from following the date of Executive’s termination of employment for any reasonhereof, neither Executive the Investor nor any of his affiliates or persons or entities acting at his direction or with his assistance its Affiliates will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities prior approval of the Company;:
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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;
(ei) 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 “Share Transaction”) 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 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 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, by purchase, exchange or otherwise, (i) any of others to seek to control the assets, tangible and intangible, management 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 Company, other than through any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment Board Designee that may be elected 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 or any Subsidiary;
(iiv) make enter into any publicly disclosed proposaldiscussions, public statementarrangements, public inquiry understandings or public disclosure of any intentionagreements, plan, or arrangement (whether written or oral) inconsistent , with, or advise, finance, aid, assist or encourage any other Person with respect to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or ; or
(v) make any public announcement with respect to any provision 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 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 Standstillassets 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 Company enters into an agreement with a Third Party pursuant to which the Company has agreed to support and recommend, 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 Company or any of its Affiliates agrees to the transfer, sale or other disposition, directly or indirectly, of all or substantially all of the assets of the Company, on a consolidated basis, or announces an intention to do so; or
(jv) announce the date on which a Third Party (together with any Affiliates) enters into an intention agreement to doacquire, 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 and the right to exercise control or direction over securities of the Company, which together with any securities already directly or indirectly held or controlled by the Third Party and its Affiliates, in aggregate would constitute more than 50% of the voting rights attached to the outstanding voting securities of the Company.
(c) The restrictions in this Section 5.1 shall not prevent the Investor or any of its Affiliates from acquiring securities of the Company where such acquisition results from the Investor’s or any of its Affiliates’ acquisition of the securities of a Person or company which acquired the securities of the Company without the Investor’s solicitation or breach of this Agreement, provided that the primary assets of such Person are not Common Shares, voting 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 activities contemplated in Section 5.1(a), to enter into confidential discussions or negotiations with the Board with respect to the terms of any such transactions or activities and to enter into any arrangement or understanding agreement with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having providing for or relating to make a public announcement regarding the consummation of any of the matters referred to in clauses (a) through (j) of this Standstill, such transactions or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingactivities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Skeena Resources LTD), Option Agreement (Skeena Resources LTD)
Standstill. Executive So long as the Company is in compliance with its obligations under this Agreement, then unless approved in advance by the Board of Directors of the Company, each Holder agrees that neither it nor any of its Representatives acting on behalf of such Holder will, for a period of 18 months from ending immediately after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members annual shareholders meeting of the BoardCompany in 2016 (and in all events no later than December 31, 2016), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquiremake any proposal to the Board of Directors of the Company, any of the Company’s Representatives or any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including “solicitation” of “proxies” as such terms are defined or propose to acquireused in Regulation 14A of the Exchange Act) offering (i) any business combination, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchasemerger, tender offer, exchange offer, through the acquisition offer or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 similar transaction involving the Company or any Subsidiary;
of its subsidiaries, (hii) seekany restructuring, alone recapitalization, liquidation or in concert with others, to control, change or influence the management, the Board or policies of similar transaction involving the Company or any Subsidiaryof its subsidiaries, or otherwise seek, alone or except in concert each case solely in connection 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 contractual arrangements between MSKCC and the Company or its then existing subsidiaries, (iii) any Subsidiary;
(i) make acquisition by MSKCC or any publicly disclosed proposal, public statement, public inquiry or public disclosure of its Affiliates of any intention, planof the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, or arrangement (whether written rights or oral) inconsistent with the foregoing, or make or disclose options to acquire interests in any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCompany’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, (iv) any proposal by MSKCC to seek representation on the Board of Directors of the Company; or
(jb) announce form an intention Exchange Act Section 13(d) “group” with any third party to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do take any of the actions restricted set forth in Section 4.1(a);
(c) in the case of MSKCC together with any of its Affiliates, acquire (or prohibited under clauses propose or agree to acquire), of record or beneficially, by purchase or otherwise, any equity securities representing in aggregate more than one percent (a) through (j1%) of this Standstilloutstanding voting power in shares of the Company, or take any action that might result rights or options to acquire interests in the Company having to make a public announcement regarding any of the matters referred to Company’s equity securities representing in clauses aggregate more than one percent (a) through (j1%) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with outstanding voting power in shares of the foregoingCompany.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Actinium Pharmaceuticals, Inc.), Investors’ Rights Agreement (Memorial Sloan-Kettering Cancer Center)
Standstill. Executive 18.1 Subject to Clause 18.2, each of the Sellers agrees that for a period and undertakes that, without the prior written consent of 18 months the Purchaser, from the date of Executive’s this Agreement until Closing (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 employment for any reasonthis Agreement (in accordance with its terms) it will not, neither Executive nor any and will procure that no member of his affiliates or persons or entities acting at his direction or with his assistance its Group will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, acquire or 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into knowingly cause or exchangeable foractively encourage or procure any other person to acquire or offer to acquire, any voting interest in any shares or other securities of the Company Purchaser as a result of which it or any Subsidiary, other than the acquisition person including any member of its Group will or may acquire an interest in the aggregate of less than one-half of one percent of the outstanding voting any shares or other securities of the CompanyPurchaser;
(b) announce or make, or in knowingly cause or procure any way participate in, directly other person to announce or indirectly, alone make on behalf of itself or any of any member of its Group or persons acting in concert with othersit or any member of its Group, any “solicitation” (as such term is used in an offer for the proxy rules whole of the Securities and Exchange Commission promulgated pursuant to Section 14 ordinary share capital of the Exchange 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 proxies its Group 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 acting in concert with respect to the voting of any voting securities of the Company it or any Subsidiarymember of its Group is interested in acquiring the Purchaser;
(c) initiate, propose or “solicit” (do any act as such term is used in the proxy rules a result of the Securities and Exchange Commission) stockholders of the Company which it or any Subsidiary for the approval member of stockholder proposals whether made pursuant to Rule 14a-8 its Group or Rule 14a-4 any person with which it or any member of its Group is acting in concert may become obliged (under the Exchange Act, Code or otherwise, other applicable law or cause regulation) to announce or encourage or attempt make a General Offer to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with acquire 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’ stockholdersPurchaser;
(d) form, join act in concert with any other person in connection with any offer to acquire control of the Purchaser to be made or announced by that other person or any way participate in a “group” within the meaning member of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;its Group; or
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or act in concert with othersany person with respect to the holding, by purchase, exchange voting or otherwise, (i) disposition of any shares or other securities of the 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 SubsidiaryPurchaser;
(f) arrangesolicit, or make or participate in any way participatesolicitation of, directly or indirectlyseek to persuade, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets shareholders of the Company Purchaser to vote in a particular manner at any meeting of the shareholders of the Purchaser, or requisition or join in requisitioning any Subsidiarygeneral meeting of the Purchaser to consider or vote on a Board Control-Seeking Proposal;
(g) otherwise act, alone actively or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or publicly make any public statement with respect to proposals for any merger, business combination, consolidation, sale, tender offer, consolidation or share exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization involving shares or other transaction involving securities of the Company or any Subsidiary;Purchaser; or
(h) seek, alone enter into any agreement or act in concert with others, any person in relation to control, change or influence the management, the Board or policies any of the Company foregoing.
18.2 The restrictions in Clause 18.1 shall not:
(a) apply if a Seller or any Subsidiarymember of its Group announces an offer under Rule 2.7 of the Code to acquire the Purchaser, or otherwise seektakes any other action which would require that Seller or any member of its Group to make an offer under Rule 9 of the Code, alone or in each case if such offer is recommended by the directors of the Purchaser (and, for the avoidance of doubt, no Seller nor any member of its Group will take any such action unless it has first obtained such a recommendation);
(b) apply if a third party which is not acting in concert with others, election either Seller 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 Boardtheir respective Groups makes, or propose any matter to be voted upon by the stockholders announces under Rule 2.7 of the Company Code, an offer to acquire the Purchaser’s issued ordinary share capital (whether such offer is recommended or any Subsidiarynot);
(ic) make apply to the acquisition by any publicly disclosed proposal, public statement, public inquiry pension fund of a Seller or public disclosure any member of any intention, plan, its Group of shares or other securities in the Purchaser provided that the assets of the pension fund are managed under an agreement or arrangement (whether written or oral) inconsistent with the foregoinga third party which gives such third party absolute discretion regarding dealing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillvoting and acceptance decisions; or
(jd) announce an intention apply to do, the acquisition of any interest in shares or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any other securities of the actions restricted Purchaser by any connected fund manager or prohibited under clauses principal trader (a) through (j) of this Standstill, or take any action that might result as defined in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCode).
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. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, 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 acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership in excess of 12% of the acquisition outstanding shares of Common Stock (based on the latest annual or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent 15(d) of the outstanding voting securities of the CompanyExchange Act);
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of any voting securities of the Company or any Subsidiarythis Agreement);
(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 in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities 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 SubsidiariesShareholder 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 stockholder meeting;
(e) acquirecall 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, offer encourage or assist any other person to acquire initiate or agree to acquirepursue such a proposal or request) or otherwise acting alone, directly or indirectly, alone or in concert with others, by purchase, exchange seek to control or otherwise, (i) any influence the governance or policies of the 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 SubsidiaryCompany;
(f) arrangepublicly 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 way participatemanner that would require public disclosure by any of the members of the Shareholder Group or their respective Affiliates or Associates) to obtain any waiver, directly consent under, or indirectly, in any financing for the purchase amendment of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets provision of the Company or any Subsidiarythis Agreement;
(g) otherwise act, alone or in concert with others, to seek to propose to disparage the Company or any Subsidiary member of the Board or any management of their respective stockholders the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or make any public statement with respect otherwise, or to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization communications that are required by an applicable legal obligation or other transaction involving the Company or any Subsidiaryare subject to contractual provisions providing for confidential disclosure;
(h) seekengage in any short sale or any purchase, alone 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 concert with others, to control, change the market price or influence the management, the Board or policies value 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 or any SubsidiaryCompany’s securities;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Telecommunication Systems Inc /Fa/)
Standstill. Executive agrees that for a period ▇▇▇▇▇▇ shall not, and shall cause each other Person in the ▇▇▇▇▇▇ Group not to, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the BoardGovernance Committee, acting by resolution approved by alone or as part of a majority of all members of the Board, directly or indirectly, in any manner group: (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) acquire, propose, or 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, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of Meritage (other than securities owned beneficially by any Person in the Company ▇▇▇▇▇▇ Group) or any Subsidiaryof its subsidiaries or any material portion of the assets of Meritage or any of its subsidiaries or divisions, other than the acquisition in the aggregate provided however, that if ▇▇▇▇▇▇ ▇▇▇▇▇ shares that bring his beneficial ownership of less than one-half of one percent Voting Securities below 5% of the outstanding voting securities Voting Securities of Meritage, ▇▇▇▇▇▇ or any Person in the ▇▇▇▇▇▇ Group may reacquire Voting Securities from time to time provided that as a result of such acquisitions the aggregate beneficial ownership of Voting Securities by the ▇▇▇▇▇▇ Group does not increase and thereafter exceed 4.99% of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules outstanding Voting Securities of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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 proposalMeritage; 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) any of the 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) arrangemake, or in any way participate, directly or indirectly, in any financing for “solicitation” of “proxies” (as such terms are used in the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets rules of the Company SEC) to vote or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company advise or influence any Subsidiary or any of their respective stockholders or make any public statement Person with respect to the voting of any mergersecurities of Meritage, 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, otherwise seek to control, change control or influence the managementmanagement of Meritage or its Board of Directors by means of statements or communications with any party other than Meritage’s Chief Executive Officer, the Board or policies of the Company or any SubsidiaryChief Financial Officer, or otherwise seek, alone General Counsel or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination members of any candidate to, the its Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
Directors; (iiii) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to doto, or to enter into any arrangement or understanding with others (whether written or oral) to dosubmit a proposal for, or to finance, intentionally advise, enable, assist offer of (with or encourage others to do without conditions) any extraordinary transaction involving Meritage or any of the actions restricted its securities or prohibited under clauses (a) through (j) of this Standstillassets, or take any other action that might result 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, employees, agents (including investment bankers), partners or Affiliates to, directly or indirectly, engage in negotiations with, provide any information to, induce or 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 Company having 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 5(b), or to take any action designed to or which could reasonably be expected to require Meritage to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5(b).
Appears in 2 contracts
Sources: Cooperation Agreement (Meritage Homes CORP), Cooperation Agreement (Meritage Homes CORP)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, 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 acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership in excess of 15% of the acquisition outstanding shares of Common Stock (based on the latest annual or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary15(d) of the Exchange Act), other than excluding the acquisition in of equity-based compensation pursuant to Section 13 hereof and the aggregate exercise of less than oneany options or conversion of any convertible securities comprising such equity-half of one percent of the outstanding voting securities of the Companybased compensation;
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of any voting securities of the Company or any Subsidiarythis Agreement);
(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 in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities 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 SubsidiariesCommon 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 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) acquirecall 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, offer encourage or assist any other person to acquire initiate or agree to acquirepursue such a proposal or request) or otherwise acting alone, directly or indirectly, 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 purchaseentering into any discussions, exchange 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 the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrangesecurities 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 way participatetransferee 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, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof 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) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary 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 stockholders Affiliates or make Associates) to obtain any public statement with respect to waiver, consent under, or amendment of any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryprovision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember 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 seek, alone or in concert with others, election or appointment to or representation onotherwise, 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 communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right or arrangement 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;
(j) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jk) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇ from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required to comply with his fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Fuel Systems Solutions, Inc.), Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. Executive agrees that During the term of his employment and for a period of 18 six months from after the date of the Executive’s termination of employment for any reasonis terminated, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall not, directly or indirectly, 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 indirectly or in concert with othersany other person, engage in any of the following:
(i) purchase, offer to purchase, or agree to purchase or otherwise acquire, by means of a purchase, tender offer, or exchange offer, through the acquisition business combination or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants other manner (including rights or options to acquireacquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable forfor Common Stock of the Company, that would result in the Executive, the Executive’s affiliates, and the members of any “group” of persons with which the Executive or his affiliates are acting in concert beneficially owning, 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 securities 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 Subsidiaryof its affiliates, other than including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the acquisition in the aggregate vote of less than one-half any holder of one percent of the outstanding voting securities of the Company;; or
(biii) makebe employed by any person (other than NorthStar) that, directly or through its affiliates, engages in any way participate inof the foregoing. Notwithstanding anything in this Section 7(d) to the contrary, no action described above taken by NorthStar (whether directly or indirectly, alone voluntarily or involuntarily) shall be considered to be a violation of this Section 7(d) by Executive. 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 otherwise acquired by the Executive in concert connection with others, any “solicitation” (or as such term is used in the proxy rules a result of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity Executive’s employment with respect to the voting of any voting securities of the Company or any Subsidiary;
(cservice 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) initiate, propose or above such that the Company would be considered to be in “solicitplay” (as such term is used in the proxy rules through no act of the Securities and Exchange Commission) stockholders of Executive, 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 Executive will no longer be subject to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning limitations 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSections 7(d).
Appears in 2 contracts
Sources: Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. Executive agrees that for a period of 18 12 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. Executive The Shareholder hereby agrees that that, for a period of 18 months one year from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, the Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of its Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, publicly announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person Person, by joining a partnership, limited partnership, syndicate or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
"group" (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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 Act) or otherwise, any voting equity securities of the Company Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire additional shares of Common Stock in open market or privately-negotiated transactions as long as the SubsidiariesShareholder and its Affiliates, collectively, shall not, as a result of such purchase or purchases, beneficially own in excess of 25% of the outstanding shares of Common Stock;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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) arrangemake, or in any way participate, directly or indirectly, in any financing "solicitation" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) of proxies or consents (whether or not relating to the election or removal of directors), seek to advise, encourage or influence any Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(iii) seek, propose, or make any public statement (whether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of any voting assets, sale or purchase of securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or securities convertible similar transactions of or exchangeable into or exercisable for any voting securities or assets of involving the Company or any Subsidiaryof its Affiliates or solicit or encourage any other Person to make any such public statement or proposal;
(giv) 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, 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 its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to propose control or influence or seek to influence the Company management, Board of Directors or any Subsidiary or any policies 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 SubsidiaryCompany;
(hviii) seek, alone or in concert with others, to control, change or influence the management, representation on the Board or policies of Directors 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 seek the removal of any member of the Board, or propose any matter to be voted upon by the stockholders Board of the Company or any SubsidiaryDirectors;
(iix) make any publicly disclosed proposal or enter into any discussion regarding any of the foregoing;
(x) publicly make any proposal, public statementstatement or inquiry, public inquiry or public disclosure of publicly disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or publicly make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Agreement or seek permission to the Certificate of Incorporation or make any public announcement with respect to any provision By-laws of the StandstillCompany; or
(jxi) announce an intention to do, or to enter into any arrangement arrangements, understandings or understanding with others agreements (whether written or oral) to dowith, or to finance, intentionally advise, enablefinance or assist, assist or encourage others to do any other Person in connection with any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillforegoing, or take make any action investment in or enter into any arrangement with, any other Person that might result engages, or offers or proposes to engage, in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Standstill. Executive Armistice agrees that for a period of 18 months from until the date of Executive’s termination of employment for any reasonTermination Date, neither Executive nor any of his affiliates or persons or entities 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 at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Armistice Affiliates”) not to, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to as, prior express written invitation or authorization by the “Standstill”):Board:
(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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, engage in or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant (the “SEC”), but without regard to Section 14 the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies proxies, consents 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 voting authorizations with respect to the voting election or removal of any voting securities directors of the Company or any Subsidiary;
(c) initiateother matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or assist 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 “participant” in any such stockholder proposal; solicitation of proxies, consents or otherwise communicate with voting authorizations from the Company’s stockholders;
(b) encourage, influence, induce or its Subsidiaries’ stockholders advise or others 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 authorization to vote any shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with the solicitation of proxies or consents or matters presented any matter submitted to the Company’s stockholders for their consideration and vote);
(c) form, join, encourage, influence, advise, act in concert with or its Subsidiaries’ stockholdersin any way participate in any “group” (as defined pursuant to Section 13(d) of the 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 hereafter owned by them;
(d) form, join make or be the proponent of any way participate in a “group” within the meaning of Section 13(d)(3) of stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act with respect to any voting securities of the Company or the Subsidiariesotherwise);
(e) acquiremake any request for a stockholder list or for any other Company materials, offer to acquire books or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any records under Section 220 of the assetsDelaware General Corporation Law, tangible as amended, or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books 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 Subsidiaryrecords;
(f) arrangemake any statement or announcement that constitutes an ad hominem attack on, or in otherwise disparages or causes to be disparaged, the Company, 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 actCompany’s Affiliates, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders the Company’s past, present or make any public statement with respect to any mergerfuture employees, business combinationdirectors, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization managers 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillrepresentatives, or take any action that might would reasonably be expected to result in any such statement or announcement being publicly made;
(g) enter into any discussions, negotiations, agreements or 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 Company having terms of this Agreement, in each case which would reasonably be expected to make result in a public announcement regarding of such request or proposal; or
(i) disclose any intention, plan, commitment or arrangement to do any of the matters referred to foregoing. Notwithstanding anything in clauses this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict Armistice from (ai) through communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (jii) communicating with stockholders of the Company and others in a manner that does not otherwise violate this StandstillSection 3 or Section 4(b), or otherwise intentionally take, or solicit, or cause or encourage others to take, (iii) taking any action inconsistent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over Armistice. Nothing in this Section 3 or elsewhere in this Agreement shall be deemed to, in any manner, restrict any director’s ability to act consistently with his or her fiduciary duties as a director of the foregoingCompany.
Appears in 2 contracts
Sources: Cooperation Agreement (Avalo Therapeutics, Inc.), Cooperation Agreement
Standstill. Executive agrees that Except as permitted by Section 11.4(b), for a period of 18 months from [***] following the date execution and delivery of Executive’s termination of employment for any reasonthis Agreement, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardBoard of Directors of ARIAD US, no Controlled Person shall (or assist or encourage others to) directly or indirectly, indirectly in any manner manner: (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) acquire, offer or propose announce an intention 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, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
ARIAD US; (bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission SEC promulgated pursuant to Section 14 of the Exchange Act) any securities 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 ARIAD US with respect to the voting of any voting securities of the Company business combination, restructuring, recapitalization or any Subsidiary;
similar transaction; (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;
(diii) 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 the Subsidiaries;
ARIAD US; (eiv) acquire, offer announce an intention to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (ix) any of the assets, tangible and or intangible, of the Company or any Subsidiary ARIAD US or (iiy) direct or indirect rights, warrants or options to acquire any assets of ARIAD US, other than in the Company or any Subsidiary;
ordinary course of business; (fv) 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (ai), (ii), (iii) through or (jiv) of this StandstillSection 11.4(a); (vi) otherwise act in concert with others, to seek to offer to ARIAD US or any of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with ARIAD US, or (vii) take any action that might result in to control or influence the Company having to make a public announcement regarding any management, Board of the matters referred to in clauses (a) through (j) Directors or policies of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingARIAD US.
Appears in 1 contract
Sources: Share Purchase Agreement (Ariad Pharmaceuticals Inc)
Standstill. Executive Until the date that is the earlier of (i) the date the Purchasers and their Affiliates are no longer entitled to designate any Investor Directors pursuant to the Certificate of Designation or Section 4.15 hereof and (ii) the date the Company fails to fully declare and pay all accrued dividends in cash on a “Dividend Payment Date” (as defined in the Certificate of Designation) occurring after April 26, 2021 pursuant to the Certificate of Designation, each Purchaser agrees that for such Purchaser and its Affiliates who hold any shares of Purchased Stock or any shares of Common Stock acquired upon a period conversion of 18 months from the date shares of Executive’s termination of employment for any reasonPreferred Stock issued under this Agreement will not, neither Executive nor any of his affiliates except as expressly approved or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority Board of all members of the BoardDirectors, directly or indirectly, through their subsidiaries, Affiliates or any other Persons, or in concert with any manner (Person, or as part of a group that is deemed to be a “person” under Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Exchange Act:
(a) acquire, acquire or 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, purchase or otherwise, any direct 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 indirect beneficial interest other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, other than (i) the acquisition of the Purchased Shares pursuant to this Agreement, (ii) the acquisition of shares of Common Stock upon any conversion of the Purchased Shares or upon payment of any dividends thereon, the acquisition of shares of Common Stock upon any conversion pursuant to the Second Lien Credit Agreement, any accretion ot the liquidation preference or convertible amount with respect to the Preferred Stock or Second Lien Credit Agreement or any adjustments to the conversion price or conversion ratio or (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;
(b) 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 or direct or indirect rights, warrants or options to acquireof the Company, or any securities exercisable or exchangeable for or convertible into shares of Common Stock or exchangeable forother voting securities of the Company, or make any communication exempted from the definition of solicitation by Rule 14a-1(1)(2)(iv) under the Exchange Act (other than communications in the ordinary course of business on a confidential basis among such Purchaser and its Affiliates);
(c) 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent matter to a vote of the outstanding holders of Common Stock or other voting securities of the Company;
(bd) makeother than through the Company or Board of Directors, effect or in agree, offer, seek or propose to effect any way participate inbusiness combination, directly merger, tender offer, sale or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules acquisition of substantially all of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies assets, restructuring, recapitalization, liquidation, dissolution 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 other extraordinary transaction involving 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) acquireotherwise seek or propose to influence, offer to acquire control or agree to acquirechange the Board of Directors, directly management, policies, affairs, strategy or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, organizational documents of the Company or any Subsidiary of its Subsidiaries by way of any public communication or (ii) direct other communication to holders of Common Stock or indirect rights, warrants or options to acquire any assets other voting securities of the Company or any SubsidiaryCompany;
(f) arrangeenter into any discussions, negotiations, agreements, arrangements or understandings with, or in intentionally assist, advise or encourage, 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 other Person with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving matter described in 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under foregoing clauses (a) through (je) of this Standstill, or Section 4.2;
(g) intentionally take any action that might result in would reasonably be expected to cause or require the Company having or such Purchaser or any of its Affiliates to make a any public announcement regarding or other public disclosure with respect to any of the matters referred to described in clauses this Section 4.2; or
(ah) through (j) intentionally publicly disclose any intention, plan or arrangement inconsistent with any provision of this StandstillSection 4.2; provided, however, that nothing in this Section 4.2 will limit (i) any Purchaser’s ability to vote or, subject to the other restrictions set forth herein and in the Certificate of Designation, transfer its Securities, any amounts outstanding under the Second Lien Credit Agreement or any other securities of the Company issued on conversion of the amounts outstanding under the Second Lien Credit Agreement or otherwise intentionally takeexercise its rights under the Certificate of Designation or Second Lien Credit Agreement, (ii) the ability of any director designated by the Purchasers pursuant to this Agreement or solicitthe Certificate of Designation to vote, exercise its fiduciary duties as or cause otherwise fully participate as a member of the Board of Directors, (iii) the ability of the Purchasers to assert or encourage others 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 (iv) the ability of the Purchasers to take, any action inconsistent with exercise their rights to appoint directors and observers pursuant to this Agreement and the Certificate of Designation. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets and barriers are in place to prevent such portfolio managers from obtaining such knowledge, the covenant set forth above in Section 4.2(a) shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement; provided, that such assets managed by other managers not subject to such covenant does not exceed 1% of the Common Stock then issued and outstanding.
Appears in 1 contract
Standstill. Executive Each member of the Shareholder Group agrees that for a period other than as may be required by applicable law, order or regulation, during the Standstill Period, he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for any reasonAffiliates or agents or other persons acting on his or its behalf not to, neither Executive nor any of and will use commercially reasonable efforts to cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own, or have the right to acquire beneficial ownership of, more than the acquisition in the aggregate of less than one-half of one percent 9.99% of the outstanding voting securities Common Stock (based on the latest annual or quarterly report of the CompanyCompany filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act);
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(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 in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 3(d) hereof or acquired in the future (subject to the limitations set forth in Section 8(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the SubsidiariesCommon Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone 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 purchasethis Agreement;
(f) effect or seek to effect (including, exchange 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 the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution 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 other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment 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 Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(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 publicly disparage any member of the BoardBoard or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 24 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. Executive (a) Purchaser agrees that that, for a period of 18 months two (2) years from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis Agreement, unless specifically invited in writing by the BoardParent, acting by resolution approved by a majority neither Purchaser nor any of all members of the Boardits Affiliates will, directly or indirectly: (i) effect or seek to effect, or announce any intention to effect or in any manner way encourage any other Person to effect or seek to effect or participate in, (the obligations pursuant A) any acquisition of any securities (or beneficial ownership thereof), or rights or options to this Section 13 being referred to asacquire any securities (or beneficial ownership thereof), the “Standstill”):
or any assets, indebtedness or businesses of Parent or any Subsidiary, (aB) acquire, offer any tender 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 merger or control of another person or entity, or otherwiseother business combination involving Parent, any direct Subsidiary or indirect beneficial interest in any voting securities assets of Parent or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities the Subsidiaries constituting a significant portion of the Company consolidated assets of Parent and the Subsidiaries, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Parent or any Subsidiary, other than the acquisition in the aggregate connection with Purchaser exercising any of less than one-half of one percent its rights under any of the outstanding voting securities of the Company;
(b) makeTransaction Documents, or in any way participate in, directly or indirectly, alone or in concert with others, (D) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant Commission) or consent to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of vote 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 Parent 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 (other than in connection with the a solicitation of proxies or consents or matters presented to the Company’s by Parent or its Subsidiaries’ stockholders;
Board of Directors); (dii) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of (as defined under the Exchange Act Act) with respect to any voting securities of the Company or the Subsidiaries;
Parent; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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;
(giii) 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 control or influence the management, the management or 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 Directors 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 or any Subsidiary;
Parent; (iiv) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having which would reasonably be expected to force Parent to make a public announcement regarding any of the types of matters set forth in (i) above; or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that nothing in this Section 4.3(a) will prohibit or otherwise restrict the Transactions, Purchaser’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, any 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, Purchaser or any of its Affiliates is approached by any third party concerning any transaction involving any assets, 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 contrary contained in this Section 4.3, if at any time Parent consents to the taking of any action referred to in clauses (ai)(B) through (ji)(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 StandstillSection 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 third party does any of the acts referred to in Section 4.3(a)(i)(B) or otherwise intentionally take(C) and Section 4.3(b) does not apply, none of Purchaser and its Affiliates will be prohibited from taking any actions set forth in Sections 4.3(a)(i)(B) or solicit(C) during the pendency of such acts, or cause or encourage others provided that Purchaser shall provide Parent with written notice of any such action, including a reasonably detailed description thereof, at least 72 hours prior to take, any action inconsistent with the foregoingtaking such action.
Appears in 1 contract
Sources: Securities Purchase Agreement (Far East Energy Corp)
Standstill. Executive (a) Each Investor agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its controlled Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits controlled Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):acting alone or in concert with others:
(ai) acquire, announce an intention to 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, purchase or otherwise, record or beneficial ownership of (A) all or any direct material portion of the assets or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities business of the Company or (B) any Subsidiary, other than capital stock of the acquisition Company representing in the aggregate of less than one-half of one percent (amongst the Investors and their controlled Affiliates) in excess of the greater of (1) 19.99% of the voting power of the Company’s then outstanding voting securities capital stock or (2) the maximum percentage of the Company’s then outstanding capital stock that may be acquired by a Person without causing such Person to be deemed to be an Acquiring Person (as defined in the Rights Agreement) under the Rights Agreement, as the same may be amended, modified, extended, supplemented or replaced from time to time (the “Maximum Ownership Percentage”); provided, that, in the event the Rights Agreement is terminated or otherwise expires in accordance with its terms, the Maximum Ownership Percentage shall be deemed to be fixed and calculated as of immediately prior to such termination or expiration for all purposes of this Agreement;
(ii) seek, propose, solicit, assist or endorse any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of all or any material portion 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, whether or not any such transaction involves a change of control of the Company;
(biii) makesubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iv) engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of any the Common Stock or other voting securities or grant a proxy with respect to the voting of the Company Common Stock or other voting securities to any Subsidiaryperson other than to the Board or persons appointed as proxies by the Board with respect to the matters contemplated by Section 2(a);
(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;
(dv) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act (other than with controlled Affiliates of the Investors) with respect to any the Common Stock or other voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire deposit any shares of Common Stock or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any other voting securities of the assetsCompany in a voting trust or similar arrangement or subject any shares of Common Stock or other voting securities of the Company to any voting agreement or pooling arrangement, tangible and intangible, of other than to the extent such a group may be deemed to result with the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiaryits controlled Affiliates as a result of this Agreement;
(fvi) 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 vote for any voting securities nominee or assets of nominees for election to the Company Board, other than those nominated or any Subsidiarysupported by the Board at the 2013 Annual Meeting;
(gvii) otherwise actexcept as specifically provided in Section 1 and Section 2 of this Agreement, 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 place a representative or other transaction involving the Company controlled Affiliate or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, nominee on 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 seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) disclose publicly any intention, plan or arrangement inconsistent with the foregoing;
(ix) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(x) publicly request that the Company amend or waive any provision of this Section 3(a); or
(xi) enter into any agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or solicit or knowingly encourage any person to undertake any of the foregoing activities; provided, however, that nothing in this Section 3(a) or elsewhere in this Agreement shall (A) prohibit the Investor Director, acting in his fiduciary capacity as a director of the Company, from (1) taking any action or making any statement at any meeting of the Board or of any committee thereof, or propose (2) making any matter statement to the Chief Executive Officer, the Chief Financial Officer or any other director of the Company in his capacity as a director; or (B) prohibit the Investor Director, acting in his fiduciary capacity as a director of the Company, from making any statement or disclosure determined (on advice of outside legal counsel) to be voted upon required under the federal securities laws or other applicable laws.
(b) Notwithstanding the provisions of Section 3(a), (i) the Investors shall be permitted to engage in non-public discussions with the Board regarding one or more transactions that would otherwise be prohibited by Sections 3(a)(i) or 3(a)(ii) so long as such discussions would not reasonably be expected to result in public disclosure by the Company or the Investors under applicable law; (ii) if any person other than the Investors or its controlled Affiliates commences (within the meaning of Rule 14d-2(a) under the Exchange Act) a tender offer or exchange offer for the Common Stock of the Company that, if consummated, would result in a change of control of the Company and the Board does not recommend that the stockholders of the Company reject such tender offer or exchange offer by no later than 10 business days from the date of commencement thereof, then the Investors shall be permitted to take one or more of the actions that would otherwise be prohibited by Sections 3(a)(i), 3(a)(ii), 3(a)(v), 3(a)(viii) or 3(a)(xi) during the pendency of, and for the period of 90 days following the consummation, withdrawal or expiration of, such tender offer, exchange offer; and (iii) if the Board formally resolves to pursue a process to explore strategic alternatives, including a transaction or series of transactions that would result in a change of control of the Company, the Investors shall be permitted to participate in such strategic alternatives process on substantially the same terms and conditions generally applicable to the other participants in such strategic alternatives process (including, if applicable, the requirement to enter into a customary confidential and standstill agreement in connection therewith, and recognizing that the Board shall have full discretion to discontinue such strategic alternatives process for any Subsidiary;reason at any time).
(c) As used in this Agreement:
(i) make the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any publicly disclosed proposalindividual, public statementcorporation (including not-for-profit), public inquiry general or public disclosure limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any intention, plan, kind or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.nature;
Appears in 1 contract
Sources: Investors Agreement (Accuride Corp)
Standstill. Executive agrees The PL Capital Parties each agree that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period (as hereinafter defined), neither Executive nor any of his the PL Capital Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of MutualFirst:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an "Acquisition"), any voting securities of MutualFirst, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition PL Capital Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyMutualFirst common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryMutualFirst;
(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;
(diii) form, join join, encourage, influence, advise or in any way participate in a “"group” " within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of MutualFirst or otherwise in any manner agree, attempt, seek or propose to deposit any securities of MutualFirst in any voting trust or similar arrangement, or subject any securities of MutualFirst to any arrangement or agreement with respect to the Company voting thereof (other than any such voting trust, arrangement or agreement solely among the SubsidiariesPL Capital Parties) 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 group involving the PL Capital Parties as long as any additional member(s) agrees to be bound by the terms of this Agreement);
(eiv) 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, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary MutualFirst or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryMutualFirst;
(fv) 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 voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryMutualFirst;
(gvi) otherwise act, alone or in concert with others, propose or to seek to propose offer to the Company or any Subsidiary MutualFirst or any of their respective its 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 similar transaction involving to or with MutualFirst or 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, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of MutualFirst or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of MutualFirst, nominate any person as a director of MutualFirst who is not nominated by the then incumbent directors (provided that if there is a vacancy on the MutualFirst Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the MutualFirst Board of Directors or representation on, or the Nominating Committee of the MutualFirst Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryMutualFirst;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of MutualFirst 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 more of the outstanding shares of MutualFirst common stock, planexcept in a transaction approved by the MutualFirst Board of Directors;
(viii) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against MutualFirst or the Bank or their respective directors or officers, or arrangement (whether written or oral) inconsistent with the foregoingin any derivative litigation on behalf of MutualFirst, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillexcept for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillParagraph 3, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 3 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any MutualFirst annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of MutualFirst they or any of them beneficially own in favor of the nominees for election or reelection as director of MutualFirst selected by the Board of Directors of MutualFirst and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any MutualFirst stockholder to a vote of the MutualFirst stockholders, to vote all of the MutualFirst shares they beneficially own in accordance with the recommendation of the MutualFirst Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by ▇▇. ▇▇▇▇▇▇▇ or the Substitute in his capacity as a member of MutualFirst's Board of Directors or the Bank's Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 3 of this Agreement directly with the President and Chief Executive Officer of MutualFirst, or otherwise intentionally takeupon invitation, with other members of management or solicitthe Board of Directors of MutualFirst. The "Standstill Period" shall begin as of the date of this Agreement and shall remain in full force and effect until the later of (1) the close of business on the date of the 2016 annual meeting of stockholders of MutualFirst or (2) the last day that ▇▇. ▇▇▇▇▇▇▇ or any substitute for ▇▇. ▇▇▇▇▇▇▇ nominated by the PL Capital Parties pursuant to Paragraph 5 hereof (the "Substitute"), as the case may be, serves as a director of MutualFirst or cause the Bank. Notwithstanding anything in this Agreement to the contrary, at the sole option of MutualFirst, the Standstill Period may be terminated by MutualFirst in the event that the beneficial ownership of the PL Capital Parties decreases below 5% of the outstanding shares of MutualFirst common stock (in which event ▇▇. ▇▇▇▇▇▇▇ or encourage others to takethe Substitute, any action inconsistent with as the foregoingcase may be, shall promptly submit his resignation as a director of MutualFirst and the Bank).
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Period (as defined below), neither Executive nor Seller shall not, and shall not permit any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited its Affiliates (other than Affiliates engaged in writing by the Board, acting by resolution approved by a majority of all members of the BoardNon-Private Equity Business) to, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to as, the “Standstill”):prior written consent of SEACOR:
(a) acquire, offer agree to acquire or propose to acquire, solicit an offer to sell or agree make any public proposal to acquire, directly or indirectly, alone beneficial ownership of SEACOR Common Stock, or securities of the SEACOR that are convertible into SEACOR Common Stock (other than (i) the delivery of shares of SEACOR Common Stock pursuant to the Purchase Agreement or (ii) the acquisition of shares of SEACOR Common Stock or other securities of SEACOR as a result of any stock splits, stock dividends or other distributions or recapitalizations or offerings made available by SEACOR to holders of SEACOR Common Stock, including rights offerings), or enter into any contract, arrangement, understanding or relationship (other than the Purchase Agreement) which gives Seller or any of its Affiliates the economic equivalent of ownership of SEACOR Common Stock due to the fact that the value of the derivative is explicitly determined by reference to the price or value of SEACOR Common Stock or of any interest therein, or otherwise enter into a derivative transaction with respect to SEACOR Common Stock;
(b) deposit any shares of SEACOR Common Stock in concert a voting trust or similar arrangement or subject any shares of SEACOR Common Stock to any voting agreement, pooling arrangement or similar arrangement or grant any proxy with othersrespect to any shares of SEACOR Common Stock (other than to SEACOR or a person specified by SEACOR in a proxy card provided to stockholders by or on behalf of SEACOR);
(c) enter, by purchaseagree to enter, propose or offer to enter into or facilitate any merger, business combination, tender offer, exchange offerrecapitalization, through the acquisition restructuring, change in control transaction or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company other similar extraordinary transaction involving SEACOR or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits subsidiaries;
(bd) make, or in any way participate or engage in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, advise or seek to advise, encourage or knowingly influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company SEACOR or any Subsidiaryits subsidiaries;
(ce) initiatecall, propose or “solicit” (as such term is used in the proxy rules seek to call, a meeting of the Securities and Exchange Commission) stockholders of SEACOR or initiate any stockholder proposal for action by stockholders of SEACOR;
(f) otherwise act, alone or in concert with others (other than among Seller and its Affiliates, and their respective directors, officers, managers, employees and representatives), to seek to control or influence the Company management or the policies of SEACOR;
(g) publicly disclose any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 intention, plan or Rule 14a-4 under the Exchange Actarrangement prohibited by, or otherwiseinconsistent with, the foregoing;
(h) advise or cause knowingly assist or encourage or attempt to cause enter into any discussions, negotiations, agreements or encourage others to initiate arrangements with any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others other persons in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersforegoing;
(di) propose, seek or request permission to do any of the foregoing, request to amend or waive any provision of this Section 1.01 (including, without limitation, this clause (i)), make or seek permission to make any public announcement with respect to any of the foregoing or take any action that such person reasonably believes will require SEACOR to make a public announcement regarding the possibility of a business combination, merger or other type or transaction described above; or
(j) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) 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 SEACOR in concert connection with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, forgoing; Notwithstanding the foregoing provisions 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 managementthis Section 1.01, the Board foregoing provisions shall not, and are not intended to, (x) prohibit Seller or policies of the Company its Affiliates from privately communicating with, including making any offer 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 proposal to, the Board of Directors of SEACOR or the removal of (y) restrict in any member of the Board, manner how Seller or propose any matter to be voted upon by the stockholders of the Company its Affiliates vote their SEACOR Common Stock or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingother SEACOR securities.
Appears in 1 contract
Standstill. Executive agrees that for (a) During the Standstill Period, each AREX Party shall not, and 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 period material amount of 18 months from the date assets or securities of Executive’s termination of employment for any reason, neither Executive nor Fiesta or any of his affiliates its subsidiaries, (B) any form of restructuring, recapitalization or persons similar transaction with respect to Fiesta or entities acting at his direction 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 foregoing shall not prohibit the 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 engagement in, any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with his assistance willrespect to any Voting Securities, unless specifically invited or assist or participate in writing by the Board, acting by resolution approved by a majority of all members of the Boardany other way, directly or indirectly, in any manner 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 Securities Exchange Act of 1934, as amended, and with the rules and regulations thereunder (the obligations pursuant “Exchange Act”), to this Section 13 being referred to asvote any securities of Fiesta (including by initiating, the encouraging or participating in any “Standstill”):withhold” or similar campaign);
(aiii) purchase or otherwise acquire, offer or offer, seek, 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 ownership (including beneficial ownership) of another person or entity, or otherwiseany securities of Fiesta, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or securities convertible into any assets or exchangeable forliabilities of Fiesta; provided that the AREX Parties and their Affiliates, in the aggregate, may acquire beneficial ownership of up to 14.9% of the then outstanding Voting Securities;
(iv) 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 Company securities of Fiesta or any Subsidiaryrights 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 Affiliates, owning, controlling or otherwise having any beneficial or other than the acquisition ownership interest representing in the aggregate in excess of less than one-half of one percent 4.9% of the shares of Common Stock outstanding voting securities 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 the Companyactivism or known plans to engage in activism;
(bvi) maketake any action in support of or make any proposal or request that constitutes or would result in: (A) advising, controlling, changing or influencing any director or the management of Fiesta, including, but not limited to, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of 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 Bylaws or the Certificate of Incorporation (as defined below), or other actions that may impede or facilitate the acquisition of control of Fiesta by any person, (E) 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 Exchange Act;
(vii) communicate with stockholders of Fiesta or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(viii) engage in any way participate incourse 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, directly including by making public announcements or indirectlyspeaking 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 call, or request the call of, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules meeting of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to votestockholders, whether subject to or exempt from not such a meeting is permitted by the proxy rulesBylaws, including a “town hall meeting”;
(xi) deposit any shares of Common Stock or seek to advise, encourage or influence other Voting Securities in any manner whatsoever voting trust or subject any person shares of Common Stock or entity other Voting Securities to any arrangement or agreement with respect to the voting of any shares of Common Stock or Voting Securities (other than any such voting securities of trust, arrangement or agreement solely among the Company or any SubsidiaryAREX Parties that is otherwise in accordance with this Agreement);
(cxii) initiateseek, 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 advise any person, to cause submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to Fiesta or seek, encourage others to initiate or take any such stockholder proposal; or otherwise communicate other action with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented respect to the Company’s election or its Subsidiaries’ stockholdersremoval of any directors;
(dxiii) form, join or in any other way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities Voting Security; provided, however, that nothing herein shall limit the ability of an Affiliate of an AREX Party to join the Company “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 SubsidiariesAREX Party has formed a group with such Affiliate;
(exiv) acquire, offer demand a copy of Fiesta’s list of stockholders or its other books and records or make any request pursuant to acquire Rule 14a-7 under the Exchange Act or agree under any statutory or regulatory provisions of Delaware providing for stockholder access to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, books and records (iincluding lists of stockholders) any of the 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 SubsidiaryFiesta;
(fxv) arrange, make any request or in submit any way participate, directly proposal to amend or indirectly, in any financing for waive the purchase terms of any voting securities or securities convertible or exchangeable into or exercisable this Section 5 other than through non-public communications with Fiesta that would not be reasonably likely to trigger public disclosure obligations for any voting 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 the Company or any Subsidiary;this Agreement; or
(gxviii) otherwise actenter into any discussions, alone negotiations, agreements or in concert understandings with othersany person with respect to any action the AREX Parties are prohibited from taking pursuant to this Section 5, to or advise, assist, knowingly encourage or seek to propose persuade any person to the Company or take any Subsidiary or any of their respective stockholders action or make any public statement with respect to any mergersuch action, business combinationor 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 5, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization the AREX Parties shall not be prohibited or other transaction involving the Company or any Subsidiary;
restricted from: (hA) seek, alone or in concert communicating privately with others, to control, change or influence the management, the Board or policies 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 Company AREX Parties or their respective Affiliates, Fiesta or its Affiliates or any SubsidiaryThird Party, subject in any case to any 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 AREX Parties of this Agreement is not the cause of the applicable 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 seek, alone or reasonably expected to be publicly disclosed.
(b) The provisions of this Section 5 shall not limit in concert with others, election or appointment to or representation on, or to nominate or propose any respect the nomination actions of any candidate 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 the AREX Parties or their Affiliates). The provisions of this Section 5 shall also not prevent the AREX Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 2 hereto).
(c) During the Standstill Period, each AREX Party shall refrain from taking any actions which could have the effect of encouraging, assisting or 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 provisions of Sections 1, 2 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 termination of any Investor Agreements, in each case, 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, the Board and to cause its Representatives not to, comment publicly about any director or the removal 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 member time the AREX Parties cease to have a Schedule 13D filed with the SEC and during 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 Boardsecurities of Fiesta (a) beneficially owned by each such entity or individual, or propose any matter (b) with respect to be voted upon by which the stockholders of the Company or any Subsidiary;
AREX Parties have (i) make any publicly disclosed proposal, public statement, public inquiry direct or public disclosure 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 any intention, plansuch securities, or arrangement (whether written or oralc) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to which any provision of the Standstill; or
(j) announce an intention AREX Party has hedged its position by selling covered call options. This ownership information provided to doFiesta will be kept strictly confidential, or unless required to enter into any arrangement or understanding with others (whether written or oral) be disclosed pursuant to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to takeapplicable laws and regulations, any action inconsistent subpoena, legal process or other legal requirement or in connection with the foregoingany litigation or similar proceedings in connection with this Agreement.
Appears in 1 contract
Sources: Cooperation Agreement (Fiesta Restaurant Group, Inc.)
Standstill. Executive (a) Each Investor agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):acting alone or in concert with others:
(ai) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company business combination or any Subsidiaryother manner, other than the acquisition in the aggregate beneficial ownership of less than one-half of one percent of the outstanding voting any securities of the Company;
(bii) makesubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iii) engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of any the Common Stock or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(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;
(div) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities of agreement or pooling arrangement other than as set forth in the Company or Schedule 13D on the Subsidiariesdate hereof;
(ev) acquireseek to call, offer or to acquire or agree to acquirerequest the call of, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any a special meeting of the assetsCompany’s stockholders, tangible and intangible, or make a request for a list of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany’s stockholders;
(fvi) 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 vote for any voting securities nominee or assets of nominees for election to the Company Board, other than those nominated or any Subsidiarysupported by the Board;
(gvii) otherwise actexcept as specifically provided in Section 1 and Section 2 of this Agreement, 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 place a representative or other transaction involving the Company Affiliate, Associate or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, nominee on 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 seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (A) any matter to be voted upon by the stockholders acquisition of any material assets or businesses of the Company or any Subsidiaryof its subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (including through any arrangement having substantially the same economic or other effect as a sale, lease, exchange, pledge, mortgage, or transfer or assets); (B) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries
(ix) make any demands for books and records and other materials pursuant to Section 220 of the DGCL or pursue any litigation related thereto against the Company, or to encourage, assist or cooperate with any third party with respect to any such demand(s) or litigation;
(x) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(xii) publicly request that the Company amend or waive any provision of Sections 2 and 3(a);
(xiii) enter into any agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities;
(xiv) provided, however, that nothing in this Section 3(a) or elsewhere in this Agreement shall prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director of the Company, from (1) taking any action or making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to any Co-Executive Chairman or the Chief Executive Officer or any other director of the Company; (B) an Investor Director, acting in his or her fiduciary capacity as a director of the Company, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to any Co-Executive Chairman or the Chief Executive Officer or another other officer or director of the Company; or (D) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of directors of the Company and the other matters referenced in Section 2(a).
(b) As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, planthe term “Affiliate” means a person that directly, or arrangement (whether written indirectly through one or oral) inconsistent with the foregoingmore intermediaries, controls, or make is controlled by, or disclose any request or proposal to amendis under common control with, waive or terminate any provision of this Standstill or seek permission to or make any public announcement the person specified with respect to the specific action at issue hereunder; the term “Associate” means any provision corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and any relative or spouse of the Standstill; or
(j) announce an intention to dosuch person, or any relative of such spouse, who has the same home as such person, in each case, with respect to enter into the specific action at issue hereunder; the term “control” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any arrangement individual, corporation (including not-for-profit), general or understanding with others (whether written limited partnership, limited liability company, joint venture, estate, trust, association, organization or oral) to do, other entity of any kind or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.nature; and
Appears in 1 contract
Standstill. Executive The Investor agrees that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardInvestor will not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its controlled Affiliates not to:
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a public proposal 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, purchase or otherwise, any direct or indirect beneficial interest in any voting equity securities or direct or indirect rightsdebt securities of the Company, warrants or options to acquire, or any securities convertible into or exchangeable forfor 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 any assets or property of the Company or any Subsidiary of the Company, or participation interests in any outstanding loans of the Company or any Subsidiary of the Company (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 Common Stock (or the exercise thereof) to any Investor Director as compensation for their membership on the Board, (ii) the acquisition of the Preferred Stock or the acquisition of the shares of Common Stock issuable upon conversion of the Preferred Stock) and (iii) the acquisition of securities in accordance with Section 5.18;
(b) make or in any way 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, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities call or seek to call a meeting of the Company's stockholders or initiate any stockholder proposal or action by the Company's stockholders, or seek election to or to place a Representative on the Board (other than pursuant to Section 5.13) or seek the removal of any director from the Board;
(bc) makemake any public announcement with respect to, or in propose any way participate inmerger or business combination, directly tender or indirectlyexchange offer, alone recapitalization, reorganization or in concert with others, any “solicitation” (as such term is used in the proxy rules purchase of a material portion of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies assets, properties 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) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of other extraordinary transaction involving the Company or any Subsidiary, or enter into any discussions, negotiations, arrangements, understandings or agreements with any other Person regarding any of the foregoing;
(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;
(gd) 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 control or influence the management, the Board or policies of the Company or any Subsidiary;
(e) make any public proposal or statement of inquiry or publicly disclose any intention, plan or otherwise seekarrangement consistent with the foregoing;
(f) advise, alone assist, knowingly encourage or in concert with others, election or appointment direct any Person to or representation ondo, or to nominate advise, assist, encourage or propose the nomination of direct any candidate toother Person to do, the Board or the removal of any member of the Boardforegoing;
(g) take any action that would, or propose in effect, require the Company to make a public Announcement with respect to any matter to be voted upon by the stockholders of the Company foregoing;
(h) enter into any discussions, negotiations, arrangements or understandings with any Subsidiarythird party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, any 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 with respect to any of the foregoing;
(i) make request the Company or any publicly disclosed proposalof its Representatives, public statementdirectly or indirectly, public inquiry to amend or waive any provision of this Section 5.10, 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 5.10, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by the Company; or
(j) contest the validity of this Section 5.10 or make, initiate, take or participate in any intentiondemand, plan, Action (legal or arrangement (whether written or oralotherwise) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 5.10; provided, however, that nothing in this Section 5.10 will limit (1) the Investor Parties' ability to vote, Transfer (subject to Section 5.11), convert (subject to the Ownership Limitation), purchase Proposed Securities (subject to Section 5.20) or seek permission otherwise exercise rights under its Common Stock or Preferred Stock that were not acquired in contravention of this Section 5.10 or (2) the ability of any Investor Director to vote or make otherwise exercise its fiduciary duties or otherwise act in its capacity as a member of the Board, and provided further that notwithstanding anything to the contrary in this Section 5.10, the Investor and its Affiliates may at any time (x) communicate privately with the Company's directors, officers or advisors or submit to the Board one or more confidential proposals or offers for a transaction (including a transaction that, if consummated, would result in a Change of Control), so long as, in each case, such communications and submissions are not intended to, and would not reasonably be expected to, require any public announcement with respect disclosure by the Company of such communications or submissions, as applicable, (y) acquire up to an additional 5% of any provision class of debt securities or loans of the Standstill; or
Company and (jz) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any after the first anniversary of the actions restricted or prohibited under clauses (a) through (j) of this StandstillFirst Closing Date, or take any action that might result in the Company having acquire up to make a public announcement regarding any an additional 5% of the matters referred to in clauses Common Stock (a) through (j) calculated based on the number of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with outstanding shares of Common Stock as of the foregoingClosing Date).
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination this Agreement until the date that is 15 calendar days prior to the last day of employment the advance notice period for any reasonthe submission by shareholders of non-proxy access director nominations for the 2021 Annual Meeting (as set forth in the advance notice provisions of the articles of incorporation and by-laws of the Company) (the “Standstill Period”), neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior consent of the Board, Impala shall not, and shall instruct its Affiliates not to, directly or indirectlyindirectly (in each case, in any manner (the obligations pursuant to except as permitted by this Section 13 being referred to as, the “Standstill”Agreement):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person or entityperson, by joining a group, through Synthetic Equity Interests or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (other than through a broad-based market index) or any Subsidiaryvoting rights decoupled from the underlying voting securities that would result in the ownership or control of, or other than beneficial ownership interest in, 9.9% or more of the acquisition then-outstanding shares of Common Stock in the aggregate of less than one-half of one percent of the outstanding voting securities of as reflected in the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K filed with the SEC;
(b) make(i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the 34834-9001-6440.3 Company’s directors are to be elected; (ii) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest at any Shareholder Meeting with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent of any shareholder proposal for consideration at, or bring any other business before, any Shareholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any shareholder proposal for consideration at, or other business brought before, any Shareholder Meeting; or (v) knowingly initiate, encourage or participate in any “withhold,” “against” or similar campaign with respect to any Shareholder Meeting;
(c) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person group or entity with respect to the voting agreement 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 kind with respect to any voting securities of the Company, including in connection with any election or removal contest with respect to the Company’s directors or any shareholder proposal or other business brought before any Shareholder Meeting (other than with Impala or one or more of its Affiliates and Associates that agree to be bound by the terms and conditions of this Agreement);
(d) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the Subsidiariesvoting thereof (other than any such voting trust, arrangement or agreement solely among Impala and its Affiliates and otherwise in accordance with this Agreement);
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 controlamend or waive any provision of the Company’s articles of incorporation or by-laws;
(f) demand a copy of the Company’s list of shareholders or an inspection of the Company’s other books and records;
(g) take any action in support of or make any proposal or request that constitutes (or would constitute if taken): (i) advising, change controlling, changing or influence the management, influencing the Board or policies management of the Company, including any plans or proposals to change the voting standard with respect to director elections, number of directors or term of directors or to fill any vacancies on the Board, (ii) any change in the capitalization, stock repurchase programs and practices, or dividend policy of the Company, (iii) any other change in the Company’s management, governance, business, 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 securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any (i) material acquisition of any assets or businesses of the Company or any Subsidiaryof its subsidiaries; (ii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses; 44834-9001-6440.3
(i) call or seek to call, or otherwise seekrequest the call of, alone or in concert with others, election any Shareholder Meeting;
(j) make any request 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 proposal that the Company or the Board amend, modify or waive any Subsidiaryprovision of this Agreement other than through non-public communications with the Company that would not be reasonably expected to result in or involve public disclosure obligations for any party;
(ik) make take any publicly disclosed proposalaction challenging the validity or enforceability of this Section 4 or this Agreement unless the Company is challenging the validity or enforceability of this Agreement; or
(l) enter into any negotiations, public statement, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or make or disclose any request or proposal to amendadvise, waive or terminate any provision of this Standstill assist, encourage or seek permission to or make persuade any public announcement Third Party to take any action with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstillforegoing, or otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoing. Nothing in this Section 4 shall be deemed to prohibit Impala from making any disclosure required by rule, law, regulation or legal process or as requested by regulatory or judicial authority; provided that any such disclosures by Impala or its Affiliates complies (i) with all existing confidentiality obligations of Impala with respect to the Company, including under Section 7, and (ii) would not be used to circumvent Impala’s obligations under Section 4(a) through Section 4(l).
Appears in 1 contract
Standstill. (1) During such period as (x) Leven is Chairman, Chief Executive agrees that for a period Officer or President of 18 months from the Company and (y) the Principal Stockholders and their Included Transferees, in the aggregate, own at least one-half of the shares of Common Stock owned by such Persons, in the aggregate, on the date hereof, the Designated Holders each agree, without the prior written consent of Executive’s termination the Board of employment for any reason, neither Executive nor any Directors of his affiliates or persons or entities acting at his direction or with his assistance will, unless the Company specifically invited expressed in writing by the Board, acting by a resolution approved adopted by a majority of all members the directors of the BoardCompany who are not Affiliates of the Designated Holders, that the Designated Holders, acting either individually or together, will not, and the Designated Holders will use their reasonable best efforts to cause each of its Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a1) acquire, announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire (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 provisions hereof), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” Person (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies hereinafter defined), by joining a partnership, limited partnership, syndicate 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;
other "group" (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 Act) or otherwise, any voting equity securities of the Company that would result in such Designated Holder and its Affiliates, in the aggregate, owning Voting Securities representing a greater 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 Subsidiaries;
(emeaning of Section 13(d)(3) acquireof the Exchange Act), offer to acquire other than the Principal Stockholders, the Included Transferees or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) a "group" which includes any of the assets, tangible and intangible, of the Company Principal Stockholders or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryIncluded Transferees;
(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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Standstill. Executive agrees that If this Agreement is terminated, then, for a period of 18 months from two years after the date of Executive’s termination such termination, IP and each of employment for any reasonits successors or assigns will not, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(ai) acquire, offer or propose or otherwise seek to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersby merger, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, beneficial ownership of any assets or in excess of 1% of any class of securities of UCC or its Affiliates or any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire (through purchase, exchange, conversion or securities convertible into otherwise) any assets or exchangeable for, in excess of 1% of any voting class of securities of the Company UCC or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits Affiliates;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is used terms are defined in Rule 14a-1 of Regulation 14A promulgated by the proxy rules SEC as of the Securities and Exchange Commission promulgated date hereof, disregarding clause (iv) of Rule 14a-1(1)(2), but including any solicitation exempted pursuant to Section 14 Rule 14a-2(b)
(1) to vote (including by the execution of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesactions by written consent), or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company or any SubsidiaryUCC;
(ciii) 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 Actcall, or otherwisein any way participate in a call for, any meeting of shareholders of UCC (or cause or encourage or attempt take any action with respect 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’ stockholdersshareholders acting by written consent);
(div) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company UCC; or
(v) otherwise act to control or influence, or seek to control or influence, UCC or the Subsidiaries;
(e) acquiremanagement, offer to acquire Board of Directors, policies or agree to acquireaffairs of UCC, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwiseincluding without limitation, (iA) making any of the assets, tangible and intangible, of the Company offer or any Subsidiary or (ii) direct or indirect rights, warrants or options proposal 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 UCC or any Subsidiary;
(g) otherwise actof its Affiliates or soliciting or proposing to effect or negotiate any form of business combination, alone restructuring, recapitalization or in concert with othersother extraordinary transaction involving UCC, to seek to propose to the Company or any Subsidiary its Affiliates or any of their respective stockholders securities or make any public statement with respect to any mergerassets, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) 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 seeking board representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member directors or a change in the composition or size of the BoardBoard of Directors of UCC, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iC) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose making any request to amend or proposal to amend, waive or terminate any provision of this Standstill Section 8.9, (D) disclosing any intent, purpose, plan or seek permission to or make any public announcement proposal with respect to matters covered by this Section 8.9 or UCC, its Affiliates or the boards of directors, management, policies or affairs or securities or assets of UCC or its Affiliates that is inconsistent with this Section 8.9, including an intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this StandstillSection 8.9, or take any action that might result in the Company having could require UCC or any of its Affiliates to make a any public announcement regarding disclosure relating to any such intent, purpose, plan, proposal or condition, or (E) assisting, advising or encouraging any person with respect to, or seeking to do, any of the matters referred foregoing; provided, however, that this Section 8.9 shall not apply if UCC does not pay any portion of the Termination Fee when due or if IP terminates this Agreement as a result of a willful breach of this Agreement by UCC; provided, further, that, if this Section 8.9 is effective against IP (and each of its successors and their respective Affiliates) during any such two-year period after the date of any such termination, and either (x) UCC shall have entered into an agreement with respect to any transaction that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of either the voting securities of UCC then outstanding or the assets of UCC and the UCC Subsidiaries, taken as a whole or (y) any Person or "group" (as defined in clauses (a) through (jSection 13(d)(3) of the Exchange Act) (other than UCC or any of its Affiliates (excluding, for this Standstillpurpose, UCC's management acting independently of UCC)) shall have commenced any tender or exchange offer that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of the voting securities of UCC then outstanding which offer is recommended by UCC's Board of Directors to its shareholders, then at the time of the public announcement of such agreement or of the commencement of such offer, as applicable, this Section 8.9 shall terminate and have no further force or effect and there shall be no rights, liabilities or obligations under this Section 8.09 on the part of IP, UCC, MergerSub, or otherwise intentionally takeany of their respective officers, directors, shareholders, agents or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAffiliates.
Appears in 1 contract
Standstill. Executive agrees The PL Capital Parties each acknowledge and represent that the investment in BFIN is not intended to constitute a “controlling” investment for a period of 18 months from federal banking law purposes and, accordingly, agree that during the date of Executive’s termination of employment for any reasonStandstill Period (as defined below), neither Executive nor any of his the PL Capital Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of BFIN:
(a1) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offertender, exchange offerexchange, gift, through the acquisition or of control of another person person, by joining a partnership, limited partnership or entity, syndicate or other “group” (within the meaning of such term in Section 13(d) of the Exchange Act) or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an “Acquisition”), any voting securities of BFIN, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition PL Capital Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyBFIN common stock;
(b2) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage 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 SubsidiaryBFIN;
(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;
(d3) form, join join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of BFIN (for the Company benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the 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) or otherwise in any manner agree, attempt, seek or propose to deposit any securities of BFIN in any voting trust or similar arrangement, or subject any securities of BFIN to any arrangement or agreement with respect to the Subsidiariesvoting thereof, except as expressly set forth in this Agreement;
(e4) 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, (ia) any of the assets, tangible and intangible, of the Company or any Subsidiary BFIN or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryBFIN;
(f5) 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 voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryBFIN;
(g6) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of BFIN or any rights decoupled from the underlying securities of BFIN held by any PL Capital Party to any person or entity not a (a) party to this Agreement, (b) member of the BFIN Board of Directors, (c) officer of BFIN or (d) a PL Capital Party affiliate (a “Third Party”) that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of BFIN common stock outstanding at such time, except in a transaction approved by the Board or in ordinary course public capital markets sale transactions;
(7) otherwise act, alone or in concert with others, to seek to propose offer to the Company or any Subsidiary BFIN or any of their respective its 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 similar transaction involving the Company to 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, BFIN or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of BFIN or the Bank or nominate any person as a director of BFIN who is not nominated by the then incumbent directors (provided that if there is a vacancy on the BFIN Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the BFIN Board of Directors or representation on, or the Corporate Governance and Nominating Committee of the BFIN Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryBFIN;
(i8) seek the removal of any member of the Board, conduct a referendum of stockholders or make a request for any stockholder list or other BFIN books and records;
(9) take any action in support of or make any proposal or request that constitutes: (a) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of BFIN; (b) seeking to have BFIN waive or make amendments or modifications to BFIN’s Articles of Incorporation or Bylaws, or other actions, that may impede or facilitate the acquisition of control of BFIN by any person; (c) causing a class of securities of BFIN to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (d) causing a class of securities of BFIN to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(10) make any publicly disclosed proposal, public statement, public inquiry statement or public disclosure of any intention, planannouncement that constitutes an ad hominem attack on, or arrangement otherwise disparages or causes to be disparaged (whether written a) any of the proposals described in this Agreement or oral(b) inconsistent BFIN or affiliates thereof, and any of its current or former officers or directors;
(11) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or make or disclose any request or proposal to amendadvise, waive or terminate any provision of this Standstill assist, knowingly encourage or seek permission to persuade any Third Party to take any action or make any public announcement statement with respect to any provision of the Standstill; orforegoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(j12) exercise or attempt to exercise a controlling influence (determined in a manner consistent with the public guidance issued by the primary federal banking regulator of BFIN) over the management or policies of BFIN, or any of its affiliates;
(13) have or seek to have more than one representative of the PL Capital Parties serve on the Board of Directors of BFIN;
(14) permit any representative of the PL Capital Parties who serves on the Board of Directors of BFIN to serve (a) as the chairman of the Board of Directors of BFIN, (b) as the chairman of any committee of the Board of Directors of BFIN, or (c) serve as a member of any committee of the Board of Directors of BFIN if such representative occupies more than 25 percent of the seats on the committee;
(15) have or seek to have any employee or representative of any PL Capital Party serve as an officer, agent, or employee of BFIN;
(16) take any action that would cause BFIN to become a subsidiary of any PL Capital Party;
(17) propose a director or slate of directors in opposition to a nominee or slate of nominees proposed by the management or Board of Directors of BFIN;
(18) enter into or seek or propose to enter into any agreement with BFIN that substantially limits the discretion of BFIN’s management over major policies and decisions, including, but not limited to, policies or decisions about employing and compensating executive officers; engaging in new business lines; raising additional debt or equity capital; merging or consolidating with another firm; or acquiring, selling, leasing, transferring, or disposing of material assets, subsidiaries, or other entities;
(19) dispose or threaten to dispose (explicitly or implicitly) of equity interests of BFIN in any manner as a condition or inducement of specific action or non-action by BFIN; and
(20) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a1) through (j19) of this StandstillParagraph 2, or take publicly announce or disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 2.
(i) At any BFIN annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree (1) to vote all shares of BFIN they or any of them beneficially own in favor of the nominees for election or reelection as director of BFIN selected by the Corporate Governance and Nominating Committee of the Board of Directors of BFIN and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any BFIN stockholder to a vote of the BFIN stockholders, to vote all of the BFIN shares they beneficially own in accordance with the recommendation of the BFIN Board of Directors with respect to any such stockholder proposal.
(ii) Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by ▇▇. ▇▇▇▇▇▇ in his capacity as a member of BFIN’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a board member; or (2) the ability of the PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement directly with the Chairman and Chief Executive Officer of BFIN, or otherwise intentionally takeupon invitation, with other members of management or solicitthe board of directors of BFIN.
(iii) The “Standstill Period” shall begin on the date hereof and shall remain in full force and effect until the date that is the earliest of (1) the date that is 10 days following the date that BFIN materially breaches its obligations under Section 1 of this Agreement, provided that such breach has not been cured prior to the expiration of such 10-day period; (2) the date that is three months from the date that ▇▇. ▇▇▇▇▇▇ (or, in the event of the death, disability or cause resignation of ▇▇. ▇▇▇▇▇▇, a substitute nominee of the PL Capital Parties, whose substitution shall be subject to the approval of the BFIN Board of Directors in its sole discretion) ceases to be a member of the BFIN Board; provided, however, with respect to this clause (2), ▇▇. ▇▇▇▇▇▇ (or encourage others the substitute representative of the PL Capital Parties) and the PL Capital Parties shall be permitted to takeexercise their respective rights, as stockholders of BFIN and in accordance with all limitations generally applicable to stockholders of BFIN, to nominate and pursue the election of ▇▇. ▇▇▇▇▇▇ (or the substitute representative of the PL Capital Parties) or ▇▇. ▇▇▇▇▇▇▇ ▇. Lashley to serve as a member of the BFIN Board of Directors immediately after ▇▇. ▇▇▇▇▇▇ (or the substitute representative of the PL Capital Parties) ceases to be a member of the BFIN Board, (3) the date immediately following the Company’s 2017 Annual Meeting of Stockholders; provided, however that, in any action inconsistent with event, Section 2(i) shall survive for so long as any designee of the foregoingPL Capital Parties serves as a member of the BFIN Board, and (4) the date on which BFIN, at the option of BFIN, elects to terminate the Standstill Period by written notice to the PL Capital Parties, which election may occur any time after the beneficial ownership of the PL Capital Parties decreases below 5% of the outstanding shares of BFIN common stock.
Appears in 1 contract
Standstill. Executive agrees 2.1 Until such time as the Teads Stockholders together with their Affiliates hold in the aggregate less than 15% of the total voting power of the outstanding capital stock of the Company determined on an as-converted basis (the “Standstill Period”), without the prior written approval of the Board to be given in its discretion, the Teads Stockholders shall not, and shall cause their Affiliates that for are Entities (and anyone acting on behalf of any such Persons) as well as a period controlling individual shareholder of 18 months from a Teads Stockholder, but excluding such Affiliates’ directors and officers, other than in their capacity as such on behalf of Seller or its Affiliates that are Entities or as a controlling individual shareholder, not to:
(a) acquire or agree to acquire or make any proposal to acquire, directly or indirectly, Beneficial Ownership of any Common Stock (including in derivative form) other than the date of Executive’s termination of employment for any reasonAcquisition Stock and other than in connection with a stock split, neither Executive nor any of his affiliates stock dividend, Preferred Stock conversion, or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing similar transaction (including as contemplated by the BoardCertificate of Designation of Series A Convertible Preferred Shares of Outbrain Inc. (the “Certificate of Designation”)); provided that, acting by resolution approved by a majority of all members of subject to compliance with applicable securities laws, nothing in this Agreement (including but not limited to the Boardrestrictions in this Section 2) will prohibit or restrict such Teads Stockholders and their Affiliates from negotiating, evaluating or trading, directly or indirectly, 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 offerindex, exchange offertraded fund, through benchmark or other basket of securities which may contain or otherwise reflect the acquisition or control of another person or entity, or otherwiseperformance of, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities indebtedness of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits subsidiaries;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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 in any way participate in a “group” within the meaning of (as defined under Section 13(d)(313(d) of the Exchange Act Act), with respect to any voting equity securities of the Company or (other than a “group” solely including 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) any of the assets, tangible Teads Stockholders 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 Affiliates with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving securities of the Company now or any Subsidiaryhereafter owned by them);
(hc) seek, alone call or in concert with others, seek to control, change have called any annual or influence the management, the Board or policies special meeting of the Company Company’s stockholders (each a “Stockholders’ Meeting”) or present or seek to present at any Subsidiary, Stockholders’ Meeting any proposal for consideration for action by stockholders 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 for discussion only by the stockholders of the Company or any Subsidiarystockholders;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Standstill. Executive agrees that for a period Until completion of 18 months from the date 2023 Annual Meeting of Executive’s termination the Stockholders of employment for the Company (the “Annual Meeting”), no Purchaser, severally and not jointly with any reasonother Purchaser, neither Executive nor or any of his affiliates its Affiliates that are directly or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing indirectly controlled by such Purchaser (the Board, acting by resolution approved by a majority of all members of the Board“Controlled Affiliates”), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):shall:
(a) acquire, offer solicit proxies or propose to acquire, solicit an offer to sell written consents of holders of Common Stock 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any become a “solicitationparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) in or assist any other Person in any “solicitation” of proxies any proxy, consent or consents other authority (as such terms are defined under the Exchange Act) with respect to voteany shares of Common Stock (other than such encouragement, whether subject 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 and their Controlled Affiliates); or (ii) encourage any other Person to solicit or exempt from the proxy ruleswithhold any proxy, consent or seek other authority with respect to any shares of Common Stock or otherwise 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 any manner whatsoever any person connection with such matter);
(b) form or entity join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the voting Common Stock (for the avoidance of doubt, excluding any voting securities group composed solely of members of the Company Investor and their Controlled Affiliates) or otherwise support or participate in any Subsidiaryeffort by any third party with respect to the matters set forth in clause (a) above;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules present at any Special Meeting of the Securities and Exchange Commission) stockholders 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(each, a “Special Meeting”), or otherwisethrough action by written consent, 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’ proposal for consideration for action by 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) any of the 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, Board of Directors or propose any matter nominee for election to the Board of Directors or seek representation on the Board of Directors;
(d) 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 Special Meeting) or deposit any shares of Common Stock in a voting trust or subject them to a voting agreement or other arrangement 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 like);
(e) without the prior approval of a majority of the members of the Board of Directors, separately or in conjunction with any other Person or entity in which it is or proposes to be voted upon by either a principal, partner or financing source, publicly propose or participate in, effect or seek to effect, any extraordinary corporate transaction, tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization, change in the stockholders 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 Subsidiaryaction which would result in a class of securities of the Company 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;
(if) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or;
(jg) announce an intention to doinstigate, encourage, join, act in concert with or to enter into assist any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others third party to do any of the actions restricted or prohibited under clauses foregoing; or
(ah) through (j) of this Standstill, or take any action that might result in would reasonably be expected to require the Company having to make a public announcement regarding the possibility of any of the matters referred to events described in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 4.18.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonCooperation Period, neither Executive nor any of his affiliates or persons or entities each H▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (and under common control) Affiliates and its and their respective Representatives acting at his direction or on their behalf (collectively with his assistance willthe H▇▇▇▇▇▇ Parties, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) to not, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to asprior written consent, invitation, or authorization of or by the “Standstill”):Company or the Board:
(ai) acquire, effect, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly by purchase or indirectlyotherwise, or direct any third party in the acquisition of, record or beneficial ownership of any securities of the Company or rights or options to acquire any securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any securities of the Company, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, 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, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities a meeting of the Company;
’s shareholders or to act by written consent (bor the setting of a record date therefor), (B) make, or in any way participate in, directly or indirectlyseek, 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 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 “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;
(iii) make any request for any shareholder list or similar materials or other books and records of the Company or any of its subsidiaries, 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 Securities and Exchange Commission promulgated 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 Section 14 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 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 election or removal of any voting securities directors of the Company or any Subsidiary;
other matter or proposal relating to the Company or (cB) initiate, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) 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 in 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’ stockholdersconsents;
(dv) formdisclose to any third party, join either publicly or any way participate in a “group” within 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 meaning 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 Section 13(d)(3) this provision), except that such disclosures may be made to the extent legally required or permitted by the prior written consent of the Exchange Act with respect to any voting securities of the Company or the SubsidiariesCompany;
(evi) acquiremake or submit any proposal for, or offer to acquire of (with or agree to acquirewithout conditions), directly or indirectly, 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, 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;
(ixiii) 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 Board, the Company, its management, policies or affairs, strategy, operations, financial results, any of its securities or assets or this Agreement, except in a manner consistent with the assetsPress Release and Disclosure (each as defined below) and the other provisions of this Agreement;
(xiv) institute, tangible and intangiblesolicit, 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 Subsidiary of its Affiliates (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 9, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising any statutory appraisal rights, or (iiE) direct responding to or indirect rightscomplying with a validly issued legal process;
(xv) enter into any negotiations, warrants agreements (whether written or options oral), arrangements, or understandings with any third party to acquire take any assets action that the Restricted Persons are prohibited from taking pursuant to this Section 2(b); or
(xvi) make any request or submit any proposal to amend or waive the terms of this Section 2(b) (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 Subsidiary;
of the Restricted Persons. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (fincluding, but not limited to, the restrictions in this Section 2(b)) arrangewill prohibit or restrict 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), (B) granting any liens or encumbrances on any claims or interests in any way participatefavor 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 financing for index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the purchase of any voting performance of, but not primarily consist of, securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or (D) providing its views privately to members of the Board or the Company’s Chief Executive Officer and 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 any Subsidiary;
(g) otherwise act, alone public disclosure of such communications or in concert with others, to seek to propose to the content thereof by the Company or any Subsidiary of the Restricted Persons. Furthermore, nothing in this Agreement shall prohibit 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 restrict M▇. ▇▇▇▇▇▇ from exercising his rights and fiduciary duties as a director of the Company or any Subsidiaryin his capacity as a director of the Company, or otherwise seek, alone or restrict him from engaging in concert with others, election or appointment to or representation on, or to nominate or propose the nomination discussions solely among other members of any candidate to, the Board and/or management, advisors, Representatives or the removal of any member agents of the Board, or propose Company; provided that any matter such discussions are limited to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal communications in his capacity as a director and conducted privately in a manner that is not reasonably likely to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a or require public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingdisclosure.
Appears in 1 contract
Standstill. Executive Each Investor agrees that that, for the period commencing immediately following the payment of the Expense Reimbursement Amount pursuant to Section 3 (the “Releases Effectiveness Time”) and ending on the earliest of (i) the one year anniversary of the Agreement, or (ii) a period material breach by the Company of 18 months its obligations under this Agreement which is not cured within five (5) Business Days after written notice from any Investor (the date of Executive’s termination of employment for any reason“Standstill Period”), neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its controlled Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits controlled Affiliates not to, directly or indirectly, 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, acting alone or in concert with others, :
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by purchase, tender offer, exchange offer, through the acquisition SEC under the Exchange Act or control otherwise) or any notice of another person nomination or entityother business for consideration, or otherwise, nominate any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options candidate for election to acquire, or securities convertible into or exchangeable for, any voting securities the Board (including by way of the Company or any SubsidiaryRule 14a-11 of Regulation 14A), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyas expressly permitted by this Agreement;
(bii) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a- 1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation”(as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity 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 of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(ciii) 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 seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s stockholders, or its Subsidiaries’ stockholders or others in connection with the solicitation make a request for a list of proxies or consents or matters presented to the Company’s stockholders or its Subsidiaries’ stockholdersto inspect any books and records of the Company;
(div) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) 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;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the SubsidiariesCompany;
(eviii) 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);
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, beneficial ownership of (iA) any interests in the Company’s indebtedness or (B) an aggregate amount of more than 9.99% of the assetsCompany’s outstanding Common Stock (which shall not include Common Stock issued in connection with a stock split, tangible and intangible, of stock dividend or similar corporate action initiated by 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 mergersecurities beneficially owned by any of the Investors or their Affiliates); provided, business combinationhowever, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or nothing herein shall prevent any SubsidiaryInvestor from confidentially seeking a waiver from this provision;
(hx) seek, alone or in concert with others, to control, change or influence short sell the management, the Board or policies of the Company or any SubsidiaryCompany’s capital stock, or otherwise seekpledge, alone hypothecate or put any liens against the Company’s capital stock, except that an Investor may partake in concert customary margin transactions with others, election or appointment to or representation ona broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to nominate become public, any intention, plan or propose arrangement inconsistent with the nomination foregoing;
(xii) take any action challenging the validity or enforceability of any candidate toprovisions of this Section 4; or
(xiii) enter into any agreement, the Board arrangement or the removal of understanding concerning any member of the Boardforegoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, each of the Investors 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 propose otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted upon on by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or and the reasons therefor. This Section 4 shall not restrict the ability of the Investors and each of their Affiliates and other Representatives to privately communicate with the Company and its Representatives so long as such private communications would not be reasonably expected to trigger public disclosure of obligations for any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingparty.
Appears in 1 contract
Standstill. Executive (a) Engine Group agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;:
(bi) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-l of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in Instruction 3 of Schedule 14A of Regulation 14A under the proxy rules Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in opposition to the recommendation or proposal of the Securities and Exchange Commission promulgated pursuant Board, or recommend or request or induce or attempt to Section 14 of the Exchange Act) of proxies or consents induce any other person to vote, whether subject to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of shareholders) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(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;
(dii) form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities the Common Stock (other than a “group” that includes all or some of the Company persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the Subsidiariesdate hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Engine Group 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 through the execution of a joinder to this Agreement;
(eiii) acquiredeposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, offer to acquire other than any such voting trust, arrangement or agree to acquire, directly or indirectly, alone or agreement solely among the members of Engine Group and otherwise in concert accordance with others, by purchase, exchange or otherwise, (i) any of the 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 Subsidiarythis Agreement;
(fiv) arrangeseek, or encourage any person, to submit nominations in any way participate, directly or indirectly, in any financing furtherance of a “contested solicitation” for the purchase election or removal 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 directors with others, to seek to propose respect to the Company or seek, encourage or take any Subsidiary other action with respect to the election or removal of any of their respective stockholders or directors;
(A) make any public statement proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, business combinationacquisition, consolidation, sale, tender offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization disposition or other transaction business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or any Subsidiarydisposition activity approved by the Board;
(hvi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any Director or Directors for election to controlthe Board, change other than those nominated or influence supported by the managementBoard;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or Director on 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 seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders (other than such encouragement, support or influence that is consistent with the Company’s management or the Board’s recommendation in connection with such matter);
(x) seek to call, or to request the call of, a special meeting of the Company’s shareholders, or make a request for a list of the Company’s shareholders or for any books and records of the Company;
(xi) 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 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 (any of the transactions or events described in this subsection (xi), a “Sale Transaction”);
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any matter to be voted upon Common Stock of the Company representing in the aggregate (among Engine Group and its Affiliates and Associates) in excess of 9.9% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the stockholders Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by Engine Group on the date of this Agreement);
(xiii) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any Subsidiaryright decoupled from such underlying security held by Engine Group to any Third Party that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case either (A) in a transaction approved by the Board or (B) to a Third Party who is entitled, and following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) of the General Rules and Regulations under the Exchange Act;
(xiv) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(xv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 6(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any Sale Transaction that has been approved by a majority of the Board and has been announced by the Company, Engine Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies in connection with such Sale Transaction.
(b) As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of terms “Affiliate” and “Associate” shall have the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of respective meanings set forth in Rule 12b-2 promulgated by the actions restricted or prohibited SEC under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Exchange Act;
Appears in 1 contract
Sources: Shareholder Agreement (Lojack Corp)
Standstill. Executive agrees that for a period of 18 months (a) Except as otherwise set forth in or permitted by this Agreement, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period (as defined below), neither Executive nor 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 his affiliates the foregoing, agents and other representatives (collectively, the “Related Persons” and each a “Related Person”) not to, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board:
(i) engage in any solicitation of proxies or written consents to vote (or withhold the vote of) any voting securities of the Company, or conduct any binding or nonbinding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any manner solicitation of proxies (the obligations pursuant or written consents) with respect 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 interest in any voting securities or direct or indirect rights, warrants or options to acquireof the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities convertible into of the Company;
(ii) grant any proxy, consent or exchangeable for, 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 shareholders) 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 Subsidiary, other than course of conduct with the acquisition in the aggregate purpose of less than one-half of one percent causing shareholders of the outstanding voting securities Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote at any meeting of the Company’s shareholders or by written consent;
(biv) makecall or seek to call, or in any way participate in, directly or indirectlyrequest the call of, alone or in concert with others, any meeting of shareholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Articles of Restatement of the Company, as amended (the “Articles”) 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 such term is used broker or agent for compensation submit a proposal or offer for, or make any communication in the proxy rules opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Securities and Exchange Commission promulgated pursuant Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Section 14 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 proxies the Company such that after giving effect to any such Acquisition, the Investor Group or consents any of its Related Persons holds, directly or indirectly, in excess of a 2.0% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to voteacquire, whether subject 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 an Extraordinary Transaction (as defined in Section 6).
(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 exempt derives any significant part of its value from a decline in the proxy rules, market price or value of the securities of the Company;
(ix) seek to advise, encourage encourage, support or influence in any manner whatsoever any person or entity with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any voting securities of the Company or its subsidiaries;
(x) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any Subsidiary;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), (A) is an Activist Shareholder or (B) 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 with no known history of activism or known plans to engage in activism;
(cxi) initiatetake any action in support of or make any proposal or request that constitutes (or would constitute if taken), propose or “solicit” make any statement or have a discussion with any known shareholder of the Company concerning or with the effect of: (as such 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 is used of directors or to fill any vacancies on the Board, (B) any change in the proxy rules of the Securities capitalization, stock repurchase programs and Exchange Commission) stockholders practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any Subsidiary 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 Articles 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 approval of stockholder proposals whether made Exchange Act;
(xii) pursuant to Rule 14a-8 or Rule 14a-4 14a-1(l)(2)(iv) 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 shareholders of the Company’s Company 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’ stockholdersothers;
(dxiii) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise) with respect to the Company or its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company’s list of shareholders or its other books and records or make any voting securities request under Sections 2-512 and 2-513 of the MGCL or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) of the Company or the Subsidiaries;any of its subsidiaries;
(exv) acquirecommence, offer to acquire encourage, join as a party, solicit or agree to acquiresupport any litigation, arbitration, derivative action in the name of the Company or any class action or other 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, alone to amend, modify or waive the terms of this Section 5 other than through non-public communications with the Company, which the Company may accept or reject in concert with othersits sole and absolute discretion, by purchase, exchange or otherwise, (i) that would not trigger public disclosure obligations for any member of the assets, tangible and intangible, of Investor Group or its Related Persons or reasonably be expected to trigger public disclosure obligations for the Company or any Subsidiary Company Related Persons; or
(xvii) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to any action the Investor Group is prohibited from taking pursuant to this Section 5, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Section 5 or elsewhere in this Agreement shall prohibit or restrict the Investor Group or its Related Persons from (iiA) direct communicating privately with members of the Board or indirect rights, warrants or options to acquire any assets 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; or (B) privately communicating to any Subsidiary;
of the Investor Group’s current investors publicly available factual information regarding the Company (f) arrangeit being understood by the Investor Group and its current investors that such communications are to be confidential communications). The Investor Group shall not, or in any way participateand shall cause its Related Persons not to, seek to do, directly or indirectly, in through any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Subsidiary;Related Person.
(gb) 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision For purposes of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement:
Appears in 1 contract
Sources: Cooperation Agreement (Independence Realty Trust, Inc.)
Standstill. Executive Each Investor Party agrees that for a period with the Company, severally and not jointly, that, until the applicable Standstill Expiration Date, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardsuch Investor Party shall not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and shall cause its Affiliates not to:
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal to acquire, directly whether by private or indirectly, alone or in concert with others, by open market purchase, a block trade, a tender offer, or exchange offer, through the acquisition or control of another person or entitybeneficial ownership of, or otherwiseany economic interest in, any right to direct the voting or indirect beneficial interest in disposition of, or any voting other right with respect to any equity or equity-linked securities of the Company or direct or indirect rightsrights to acquire any equity securities or equity-linked of the Company, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such equity securities of the Company, 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 5.05(a) shall apply to a transaction only to the extent that, after giving effect to such transaction, such Investor Party and its Affiliates would beneficially own, in the aggregate, greater than 19.9% of the then-outstanding Common Stock;
(b) (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 advise, encourage or influence any Person with respect to voting of, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company its Subsidiaries 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) any of the 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 such securities, (ii) request, call or seek to call (or, for the avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company’s 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 (vi) become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company;
(c) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), either alone or in concert with others, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities or assets of the Company or any SubsidiarySubsidiary of the Company, 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 (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);
(gd) otherwise act, alone or in concert with others, to seek to propose to control or influence, in any manner, the management, board of directors or business, of the Company or any Subsidiary 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 material change in the capitalization, capital allocation policy or dividend policy of the Company, or (iii) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person;
(e) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would require the Company to make a public announcement regarding the possibility of a transaction or any of 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 Subsidiaryevents described in this Section 5.05;
(h) seekenter into any agreements, alone 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 concert with others, to control, change or influence the management, the Board or policies any way participating in a “group” (as defined in Section 13(d)(3) of the Company or Exchange Act) with any Subsidiary, or otherwise seek, alone or third party in concert connection 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 or any Subsidiaryforegoing;
(i) make request the Company or any publicly disclosed proposalof its Representatives, public statementdirectly or indirectly, public inquiry to amend or waive any provision of this Section 5.05; provided that this clause shall not prohibit any Investor Party from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.05, 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;
(j) contest the validity of this Section 5.05 or make, initiate, take or participate in any intentiondemand, plan, Action (legal or arrangement (whether written or oralotherwise) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 5.05; provided, however, that nothing in this Section 5.05 will (1) limit any Investor Party’s ability to (A) vote, Transfer or seek permission Hedge (subject to this Agreement, including Section 5.06), (B) convert shares of Series A Preferred Stock into Common Stock, (C) exercise the Warrant, (D) acquire Preemptive Securities pursuant to Section 5.13, (E) privately make and submit to the Board any proposal that is intended by such Investor Party to be made and submitted on a non-publicly disclosed or make announced basis (and would not reasonably be expect to require public disclosure by any public announcement Person), (F) participate in rights offerings made by the Company to all holders of its Common Stock, receive any dividends or similar distributions with respect to any provision securities of the Standstill; or
Company held by such Investor Party, (jG) announce an intention tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer (subject to doSection 5.06), or (H) effect an adjustment to enter into the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights under its Common Stock or Series A Preferred Stock that are not the subject of this Section 5.05, (2) limit the acquisition by any arrangement Investor Director of any equity securities of the Company pursuant to (x) the grant or understanding with others (whether written or oral) vesting of any equity compensation awards granted by the Company to doany Investor Director, or (y) the exercise of any stock options, restricted stock units, or similar awards relating to financeany equity securities granted by the Company to any Investor Director, intentionally advise, enable, assist or encourage others to do any (3) limit the ability of the actions restricted Investor Director to vote or prohibited under clauses 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 (ai) through 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, (jii) 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 (iii) 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 Standstillparagraph. Following the Closing and until the occurrence of the Fall-Away of Investor Board Rights, or take the Company shall invite the Investor to participate in any action process commenced by the Company that might result could reasonably be expected to lead to (x) any transaction of the 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, an “Acquisition Proposal”). The Company having shall provide in reasonable detail notice to Investor of any such process promptly following commencement thereof, and shall negotiate and cooperate in good faith with the 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 other 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 a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingan Acquisition Proposal.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonThe Stockholder shall not, neither Executive nor shall any of his affiliates its directors, officers, employees, agents, advisors or persons other representatives (“Representatives”) on its behalf, without the prior written consent of Exar or entities acting at his direction its Board of Directors (or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”duly empowered committee thereof):
(a) during the Lock-Up Period:
(1) 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, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company Exar or any SubsidiarySubsidiary thereof, or of any successor to or person in control of Exar, or any assets (other than the acquisition assets in the aggregate ordinary course of less than one-half business) of one percent Exar or any Subsidiary or division thereof or of any such successor or controlling person; provided, however, that the outstanding 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 Exar, such Subsidiary or such Person does not at any time during the CompanyLock-Up Period exceed 19% of the Exar voting securities (on a fully diluted basis assuming conversion or exercise of all outstanding Exar Derivative Securities); or
(2) or request Exar or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5(a); and
(b) 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 representative for nomination by the Board of Directors for election as a director pursuant to Section 7(b) below, nominate any person to the Board of Directors of Exar;
(b2) call or attempt to call a special meeting of the stockholder of Exar;
(3) make, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesSEC), or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of Exar (including, without limitation, making any public statement in favor or support of any proposal not approved by the Company or any SubsidiaryBoard of Directors of Exar);
(c4) initiatemake any public announcement with respect to, propose or “solicit” submit a proposal for, or offer of (as such term is used in the proxy rules of the Securities and Exchange Commissionwith or without conditions) stockholders of the Company any extraordinary transaction (including a tender offer) involving Exar or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 its securities 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’ stockholdersassets;
(d5) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act Act, in connection with respect to any voting securities of the Company or the Subsidiariesforegoing;
(e6) acquire, offer to acquire request Exar or agree to acquireany of its Representatives, directly or indirectly, alone to amend or in concert with others, by purchase, exchange or otherwise, (i) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5(b).
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from (a) During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless except as specifically invited in writing by the Board, acting by resolution approved by a majority of all members the Independent Directors (so long as such approval was not obtained by the Shareholders in violation of this Agreement), none of the BoardShareholders or any of their Affiliates shall, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) 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, purchase or otherwise, Beneficially Own, acquire, agree to acquire or offer to acquire any direct or indirect beneficial interest in any voting securities Company Securities or direct or indirect rights, warrants rights or options to acquire Company Securities (including any voting trust certificates representing such securities) (or any hedging or derivative transactions that may have a similar effect to the foregoing) other than the Common Shares acquired pursuant to the Transaction Agreement, (ii) enter, propose to enter into, solicit or support any merger, amalgamation or business combination or similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or securities convertible into acquire or exchangeable for, solicit or support the purchase or acquisition of any voting securities portion of the business or assets of the Company or any Subsidiaryof its subsidiaries, other than (iii) initiate or propose any shareholder proposal without the acquisition in the aggregate of less than one-half of one percent approval of the outstanding voting securities of the Company;
(b) Board granted in accordance with this Agreement or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is terms are used in the proxy rules promulgated by the Commission under the Exchange Act) to vote, or seek to advise or influence any Person with respect to the voting of, any Company Securities or request or take any action to obtain any list of shareholders of the Securities and Exchange Commission promulgated pursuant Company for such purposes with respect to Section 14 any matter (or, as to such matters, solicit any Person in a manner that would require the filing of a proxy statement under Regulation 14A of the Exchange Act), (iv) form, join or in any way participate in a Group (other than a Group consisting solely of the Shareholders) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to Company Securities that would be required under Section 13(d) of proxies the Exchange Act to file a Statement on Schedule 13D with respect to such Company Securities, (v) deposit any Company Securities in a voting trust or consents to voteenter into any voting agreement or arrangement with respect thereto (other than this Agreement), whether subject to or exempt (vi) seek representation on the Board (other than as provided in this Agreement), the removal of any directors from the proxy rulesBoard (other than any Shareholder Directors) or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 2.2, except to the extent such request is made on a confidential basis solely to one or more of members of the Board or members of senior management of the Company, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of this Section 2.2 or (x) assist, advise, encourage or negotiate with any Person with respect to, or seek to advisedo, encourage any of the foregoing.
(b) The restrictions in Section 2.2(a) shall not (i) prevent the Shareholders from exercising their rights under Section 2.4, (ii) following the third anniversary of the Closing Date, prevent the Investor from purchasing Common Shares in the secondary market or influence in a tender offer in an amount such that (after giving effect to any manner whatsoever such purchases) the Shareholders and their Affiliates Beneficially Own no more than 27.5% of the Voting Power of the Company, (iii) following the Closing Date, prevent the Investor from purchasing Common Shares in the secondary market and/or in a tender offer in an amount such that (after giving effect to any person such purchases) the Shareholders and their Affiliates Beneficially Own no more than 21.0% of the Voting Power of the Company, (iv) to the extent that the Shareholders' Beneficial Ownership of Company Securities is diluted solely as a result of the issuance of Company Securities pursuant to employee or entity director stock option or incentive compensation or similar plans granted after the Closing Date, prevent the Shareholders from purchasing up to an Amount of Company Securities in the secondary market solely to enable the Shareholders to maintain such level of Beneficial Ownership as if the dilution resulting from such issuance had not occurred, or (v) apply to the Shareholders following the occurrence of a Change of Control. For the avoidance of doubt any Transfer or acquisition of Company Securities by the Shareholders or any of their Affiliates shall be made in compliance with the provisions of Section 6.3.
(c) Nothing in this Section 2.2 shall (i) prohibit or restrict the Shareholders from responding to any inquiries from any shareholders of the Company as to the Shareholders' intention with respect to the voting of any voting securities Company Securities Beneficially Owned by the Shareholders so long as such response is consistent with the terms of this Agreement or (ii) restrict the right of any Shareholder Director to vote on any matter as such individual believes appropriate in light of his or her duties as a director or committee member or the manner in which a Shareholder Director may participate in his capacity as a director in deliberations or discussions at meetings of the Company Board or as a member of 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;committee thereof.
(d) formIf the Board shall, join or at any way participate time and in a “group” within the meaning of Section 13(d)(3) good faith, be of the Exchange Act with respect to any voting securities opinion that the Shareholders and their Affiliates Own Voting Power of the Company in excess of the amounts permitted by this Section 2.2 (and such excess amount was not the result of any share repurchase or recapitalization or any other transaction approved by the Subsidiaries;
Board) the Company shall so advise the Shareholders and request them to reduce the level of Ownership to an amount below the applicable level (eand in connection therewith, shall waive any transfer restrictions otherwise applicable under this Article II); provided, that any transferee does not directly engage as a primary part of its business in aircraft or aircraft engine leasing or financing. If the Shareholders shall fail to effect such reduction within ten (10) acquireBusiness Days of the date on which so advised by the Company, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, the Company shall have the power (i) any of the assets, tangible and intangible, of the Company by lot or any Subsidiary or (ii) direct or indirect rights, warrants or options other means deemed equitable by them to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing call for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of by the Company or from any Subsidiary;
(g) otherwise actShareholder a number of Common Shares sufficient, 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 opinion of the Board, to bring such Ownership to no more than the amount permitted by this Section 2.2, and (ii) to refuse to transfer or propose issue Company Securities to the Shareholders and their Affiliates. The purchase price per share for any matter such Common Shares shall be equal to the average closing sales price per share for the Common Shares as reported by the NYSE or other national securities exchange on which the Common Shares are then listed for the twenty (20) trading days preceding such purchase. Payment of the purchase price shall be made in cash by the Company at such time and in such manner as may be determined by the Company. From and after the date fixed for purchase by the Company, the holder of any Common Shares so called for purchase shall cease to be voted upon by entitled to distributions, voting rights and other benefits with respect to such Common Shares, excepting only the stockholders right to payment of the purchase price fixed as aforesaid. If the Company fails to grant an exemption from the ownership restrictions set forth in this Section 2.2, then any action described in clauses (i) through (x) of Section 2.2(a) that would result in the Shareholders and their Affiliates Owning Voting Power of the Company in excess of the amounts permitted by this Section 2.2 shall be deemed void ab initio and the applicable Shareholders shall be deemed never to have had an interest in the applicable Company Securities. If the foregoing provision is determined to be void or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure invalid by virtue of any intentionlegal decision, planstatute, rule or arrangement (whether written or oral) inconsistent with regulation, then the foregoingapplicable Shareholders shall be deemed, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision at the option of the Standstill; or
(j) announce an intention Company, to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any have acted as agent on behalf of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result Company in the acquiring such Company having Securities and to make a public announcement regarding any hold such Company Securities on behalf of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months (a) Except as otherwise set forth in or permitted by this Agreement, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period (as defined below), neither Executive nor 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 his affiliates the foregoing, agents and other representatives (collectively, the “Related Persons” and each a “Related Person”) not to, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board:
(i) engage in any solicitation of proxies or written consents to vote (or withhold the vote of) any voting securities of the Company, or conduct any binding or nonbinding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any manner solicitation of proxies (the obligations pursuant or written consents) with respect 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 interest in any voting securities or direct or indirect rights, warrants or options to acquireof the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities convertible into of the Company;
(ii) grant any proxy, consent or exchangeable for, 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 Subsidiary, other than course of conduct with the acquisition in the aggregate purpose of less than one-half of one percent causing stockholders of the outstanding voting securities 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;
(biv) makecall or seek to call, or in any way participate in, directly or indirectlyrequest 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 such term is used broker or agent for compensation submit a proposal or offer for, or make any communication in the proxy rules opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Securities and Exchange Commission promulgated pursuant Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Section 14 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 proxies the Company such that after giving effect to any such Acquisition, the Investor Group or consents 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 voteacquire, whether subject 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 exempt derives any significant part of its value from a decline in the proxy rules, market price or value of the securities of the Company;
(ix) seek to advise, encourage encourage, support or influence in any manner whatsoever any person or entity with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any voting securities of the Company or its subsidiaries;
(x) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any Subsidiary;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;
(cxi) initiatetake any action in support of or make any proposal or request that constitutes (or would constitute if taken), propose or “solicit” make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (as such 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 is used of directors or to fill any vacancies on the Board, (B) any change in the proxy rules capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Securities and 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 CommissionAct;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with 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;others;
(dxiii) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise) with respect to the Company or 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 voting securities 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 (including stocklist materials) of the Company or the Subsidiaries;any of its subsidiaries;
(exv) acquirecommence, offer to acquire encourage, join as a party, solicit or agree to acquiresupport any litigation, arbitration, derivative action in the name of the Company or any class action or other 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, alone to amend, modify or waive the terms of this Section 4 other than through non-public communications with the Company, which the Company may accept or reject in concert with othersits sole and absolute discretion, by purchase, exchange or otherwise, (i) that would not trigger public disclosure obligations for any member of the assets, tangible and intangible, of Investor Group or its Related Persons or reasonably be expected to trigger public disclosure obligations for the Company or any Subsidiary Company Related Persons; or
(xvii) enter into any discussions, negotiations, agreements or (ii) direct understandings with any person or indirect rightsentity with respect to any action the Investor Group is prohibited from taking pursuant to this Section 4, warrants or options advise, assist, knowingly encourage or seek to acquire persuade any assets 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 in this Section 4 or elsewhere in this Agreement shall prohibit or restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company or regarding any Subsidiary;
(f) arrangematter, or in so long as such communications are not intended to and would not require any way participatepublic disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, in through any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Subsidiary;Related Person.
(gb) 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision For purposes of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement:
Appears in 1 contract
Sources: Cooperation Agreement
Standstill. Executive agrees that for a period Each party hereby represents to the other party that, as of 18 months from the date of Executive’s termination of employment for any reasonhereof, neither Executive it nor any of his its affiliates has beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of any securities of the other party or persons any of its subsidiaries (other than securities owned by any benefit plan of such party). Each party further covenants and agrees, in consideration of it being furnished with Proprietary Information, that neither it nor any of its affiliates who have received or entities acting at his direction or with his assistance had access to the Proprietary Information of the other party (a “Restricted Affiliate”) will, unless specifically invited in writing at any time commencing on the date hereof and ending on the earliest of (a) the twelve (12) month anniversary of this Agreement, (b) the execution and delivery by Fairfax (or its affiliate(s)) and Allied World of a definitive agreement to effect the Board, acting by resolution approved by Possible Transaction and (c) a majority of all members of Fundamental Change Event (as defined below) with respect to the Boardother party, directly or indirectly, unless requested in any manner writing (or by email) by the obligations pursuant to this Section 13 being referred to asother party’s chief executive officer, the “Standstill”):
chairman or board of directors: (ai) acquireacquire (or agree, offer offer, seek or propose to acquire, solicit an offer to sell in each case, publicly or agree to acquire, directly or indirectly, alone or in concert with othersprivately), by purchase, tender offer, exchange offer, through agreement or business amalgamation or combination or in any other manner, any ownership, including beneficial ownership, as defined in Rule 13d-3 under the acquisition Exchange Act, of any material assets or control businesses or any securities of another person the other party or entityany of its subsidiaries, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire such ownership (including from any third party); (ii) publicly or privately offer to enter into, or publicly or privately propose, any merger, business combination, amalgamation, recapitalization, restructuring or other extraordinary transaction with the other party or any of its subsidiaries; (iii) initiate any stockholder proposal or the convening of a stockholders’ meeting of or involving the other party or any of its subsidiaries; (iv) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act) or consents to vote with respect to any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of the other party or any securities convertible into or exchangeable foror exercisable for such capital stock; (v) otherwise seek or propose to influence, any voting securities advise, change or control the management, board of directors, governing instruments, affairs or policies of the Company other party or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
its subsidiaries; (bvi) makemake any public disclosure, or in take any way participate inaction that could reasonably be expected to require the other party to make a public disclosure, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company matters set forth in this Agreement or any Subsidiary;
(cvii) initiateassist, propose advise, act in concert 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 participate with 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 to, including as part 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 Act, any of the foregoing; provided, however, that nothing in this Agreement shall prohibit a party from making a non-public proposal to the other party with respect to any voting securities transaction of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or type described in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or clause (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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to doParagraph 3, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.so long as such
Appears in 1 contract
Sources: Confidentiality Agreement (Fairfax Financial Holdings LTD/ Can)
Standstill. Executive (a) During the Standstill Period, Basswood agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthat, unless specifically invited requested in writing by the BoardCompany or expressly permitted by this Agreement, acting by resolution approved by a majority Basswood and each of all members of its respective Affiliates or Associates (collectively (with Basswood) and individually, the Board“Basswood Affiliates”) and their representatives, shall not, directly or indirectlyindirectly (including through any Basswood Director), 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 indirectlymanner, alone or in concert with others:
(i) acquire, by purchase, tender offer, exchange offer, through the acquisition seek or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options propose to acquire, or securities convertible into agree to acquire, by purchase or exchangeable forotherwise, any voting securities beneficial ownership of the Company or any Subsidiaryadditional shares of Common Stock if, other after giving effect to such acquisition, Basswood and its clients and their respective Affiliates would collectively beneficially own more than the acquisition in the aggregate of less than one-half of one percent 19.9% of the outstanding voting securities shares of Common Stock; provided, that, nothing herein will require Common Stock to be sold to the Companyextent that Basswood and its clients and their respective Affiliates, collectively, exceed the ownership limit under this clause (i) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act(“SEC”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity (other than private communications with any Basswood Affiliate) with respect to the voting of (including engaging in any voting withhold or no vote campaign) any Common Stock;
(iii) separately or 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 following involving the Company or any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company or any Subsidiary;
(c) initiateof its subsidiaries: any tender offer or exchange offer, 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 Actmerger, 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) any of the 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 mergeracquisition, business combination, consolidation, sale, tender offer, exchange offerreorganization, restructuring, reorganizationrecapitalization, spin-off, split-off, licensing, sale or acquisition of, or joint venture or other partnership with respect to, material assets, sale or purchase of securities, liquidation or dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiarysimilar transaction;
(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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Standstill. Executive The Recipient agrees that that, for a period of 18 months one (1) year from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis letter agreement, unless and to the extent Recipient is specifically invited in writing by the BoardCompany to do so, acting by resolution approved by a majority neither Recipient nor any of all members of the Boardits Representatives (in their capacities as such) will in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer to sell or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist any other person to effect or seek, by purchaseoffer or propose (whether publicly or otherwise) to effect or cause or participate in or in any way advise, tender offerassist or encourage any other person to effect or seek, exchange offeroffer or propose (whether publicly or otherwise) to effect or participate in, through the (A) any acquisition or control of another person or entityof, or otherwiseof beneficial ownership of, any direct securities (or indirect beneficial interest in any voting derivative securities referencing them or direct or indirect rights, warrants or options to acquirerelated thereto) of, or securities convertible into or exchangeable forany assets of, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) makeits subsidiaries or controlled affiliates, or in any way participate inright to acquire any such securities or assets, directly (B) any tender or indirectlyexchange offer, alone merger or in concert other business combination involving the Company or any of its subsidiaries or controlled affiliates, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with othersrespect to the Company or any of its subsidiaries or controlled affiliates, or (D) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of (the Exchange Act“SEC”)) 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 vote 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;
, (dii) form, join or in any way participate in a “group” within (as defined under the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) 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 activities set forth in concert with others, by purchase, exchange or otherwise, clause (i) any of the assetsthis sentence, 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;
(giii) 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 influence or influence direct the management, the Board board of directors or policies of the Company or any Subsidiaryof its subsidiaries or controlled affiliates, or otherwise seek(iv) negotiate with, alone or in concert with others, election or appointment provide any information to or representation on, enter into any discussions or to nominate or propose the nomination of arrangements with any candidate person (other than your Representatives in accordance with this letter agreement) with respect 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make any proposal or disclose similar statement to any request or proposal to amendperson (other than your Representatives in accordance with this letter agreement) with respect to, waive or terminate any provision of this Standstill or seek permission to or make any public announcement or proposal or offer whatsoever with respect to any provision of the Standstill; or
(j) announce an intention to doto, or to enter into disclose any intention, plan or arrangement or understanding with others (whether written or oral) to dorespect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to financeeffect, intentionally advise, enable, assist any transactions or encourage others to do any of the actions restricted or prohibited under described in clauses (ai), (iii) through or (jiii) of this Standstill, above or take any action that might result which could reasonably be expected to require (under applicable Law or in connection with fiduciary obligations) the Company having or its board of directors to make a public announcement regarding any of the matters referred types of transactions or actions described in clause (i) above, or (v) request the Company (or any of its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); provided, however, that the Recipient will not be restricted from making a private, confidential proposal for a Possible Transaction solely to the Company’s board of directors so long as such confidential proposal would not require or reasonably be expected to require (under applicable Law, regulation or in connection with fiduciary obligations) the Company or its board of directors to make any public disclosure or announcement regarding such communication. Notwithstanding anything contained herein to the contrary, the Recipient will cease to be bound by the provisions of, and the Recipient’s restriction on the use of Evaluation Material will not prohibit the actions in clauses (ai) through (jv) of, the preceding paragraph in the event that (a) the Company’s board of this Standstilldirectors approves and the Company enters into, a definitive agreement that provides for a transaction with any person that would result in such person beneficially owning (i) more than 50% of the Company’s outstanding voting securities, or otherwise intentionally take(ii) substantially all of the assets of the Company and its subsidiaries taken as a whole, or solicit, (b) any person or cause persons acting in concert shall have commenced a tender offer or encourage others exchange offer for more than 50% of the Company’s outstanding voting securities and the Company’s board of directors shall have recommended that the Company’s stockholders tender or exchange in such offer or failed to take, recommend that the Company’s stockholders reject such offer within ten (10) business days following the commencement of any action inconsistent with the foregoingsuch offer.
Appears in 1 contract
Standstill. Executive If the Acquisition Closing occurs, each Novalon Stockholder hereby covenants and agrees that for a period that, so long as such Novalon Stockholder or any of 18 months from its affiliates (as such term is defined in the date Exchange Act) owns of Executive’s termination record or beneficially (as such term is defined in the Exchange Act) any of employment for any reasonthe Consideration Shares, neither Executive such Novalon Stockholder nor any of his its affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall, directly or indirectly, unless authorized in writing by Cubist, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(ai) 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, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyCubist;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage 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 SubsidiaryCubist;
(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;
(diii) 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 the SubsidiariesCubist;
(eiv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (iA) any of the assets, tangible and or intangible, of the Company Cubist or any Subsidiary of its affiliates or (iiB) direct or indirect rights, warrants or options to acquire any assets of the Company Cubist or any Subsidiaryof its affiliates, except for such assets as are then being offered for sale by Cubist, or any of its affiliates;
(fv) 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 Cubist or any Subsidiaryof its affiliates;
(gvi) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary Cubist or any of their respective its 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 to or any Subsidiary;
(h) seekwith Cubist or otherwise see, alone or in concert with others, to control, change or influence the management, the Board board of directors, or policies of Cubist or nominate any person as a director who is not nominated by 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 Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCubist; or
(jvii) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company Cubist having to make a public announcement regarding any of the matters referred to in clauses (ai) through (jvi) of this StandstillSection 6.8, or otherwise intentionally takeannounce an intention to do, or solicit, enter into any agreement or cause understanding or encourage discussions with others to takedo, any action inconsistent with of the foregoingactions restricted or prohibited under such clauses (i) through (vi).
Appears in 1 contract
Sources: Acquisition Option Agreement (Cubist Pharmaceuticals Inc)
Standstill. Executive agrees that for a period of 18 months from (a) During the date of Executive’s termination of employment for any reasonDirector Rights Period, unless (x) specifically requested in writing in advance by OCFC, (y) OCFC having given its prior written consent or (z) in connection with the express terms hereof, neither Executive Investor nor any of his its affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectlyindirectly (or assist, advise, act in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”concert or participate with or encourage others to):
(ai) acquireacquire (or agree, offer or propose to acquire, solicit an offer to sell in each case, publicly or agree to acquire, directly or indirectly, alone or in concert with othersprivately), by purchase, tender offer, exchange offer, through agreement or business combination or in any other manner, any ownership of OCFC, including beneficial ownership of any material portion of the acquisition assets or control securities of another person OCFC or entityany of its Subsidiaries, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire such ownership (including from any third party);
(ii) publicly offer to enter into, or securities convertible into or exchangeable forpublicly propose, any voting securities of the Company merger, business combination, recapitalization, restructuring or other extraordinary transaction with OCFC or any Subsidiary, OCFC Subsidiary (other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyMergers);
(bA) make, call or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesrequisition, or seek to advisecall or requisition, encourage any meeting of stockholders of OCFC or influence in provide to any manner whatsoever third party a proxy, consent or requisition to call any person meeting of stockholders of OCFC, (B) seek to have the stockholders of OCFC authorize or entity take corporate action by written consent without a meeting, solicit any consents from stockholders or grant any consent or proxy for a consent to any third party seeking to have the stockholders of OCFC authorize or take corporate action by written consent without a meeting, (C) seek representation on the OCFC Board (other than, and provided that the foregoing will not limit Investor’s rights hereunder, with respect to the voting Board Representative), (D) seek the removal of any voting securities member of the Company OCFC Board, (E) make a non-binding or any Subsidiaryprecatory vote, of stockholders of OCFC or (F) make a request for OCFC’s stock ledger pursuant to Section 220 of the Delaware General Corporation Law;
(civ) initiate, propose or “solicit” solicit proxies (as such term terms are defined in Rule 14a-1 under the Exchange Act), regardless of whether such solicitation 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 exempt pursuant to Rule 14a-8 or Rule 14a-4 14a-2 under the Exchange Act, or otherwisewith respect to any matter from, or cause otherwise seek to influence, advise or encourage direct the vote of, holders of any shares of capital stock of OCFC or attempt to cause any securities convertible into, exchangeable for or encourage others to initiate exercisable for (in each case, whether currently or upon the occurrence of any contingency) such stockholder proposal; capital stock, or otherwise communicate with make any communication exempted from the Company’s or its Subsidiaries’ stockholders or others in connection with the definition of solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersby Rule 14a-1(I)(2)(iv)(A);
(dv) knowingly enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses (i)-(iv) or knowingly form, join or any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act with respect Act) to vote, acquire or dispose of any voting securities of the Company OCFC or the its Subsidiaries;
(evi) acquire, offer file a Schedule 13D (or amendment thereto) with respect to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 OCFC or any of their respective stockholders or make any public statement with respect to any mergerits outstanding voting securities, 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 except as required by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillLaw; or
(jvii) announce an intention to do, or to enter into make any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillpublic disclosure, or take any action that might result in the Company having could reasonably be expected to require either party to make a public announcement regarding disclosure, with respect to any of the matters referred to set forth in clauses this Section 4.1(a).
(ab) through (jNotwithstanding Section 4.1(a), Investor, its affiliates and its and their respective Representatives may discuss the transactions contemplated in Section 4.1(a) of this Standstillwith, make a non-binding proposal for such transactions to, or otherwise intentionally takerequest any amendment, waiver or solicitconsent to Section 4.1(a) from, the OCFC Board or cause the Chief Executive Officer of OCFC, as long as all such discussions, non-binding proposals and requests (i) are kept strictly confidential by Investor, its affiliates and its and their respective Representatives and (ii) would not reasonably be expected to require public disclosure by either party (or encourage others any of their respective affiliates) pursuant to takeany Law or the rules, regulations or requirements of any action inconsistent with national securities exchange or inter-dealer quotation system on which any party’s or its affiliates’ securities may be listed or quoted.
(c) Notwithstanding the foregoing, nothing in this Section 4.1 shall be construed to (i) restrict Investor or its affiliates from confidentially communicating with their Representatives and affiliates about such transactions, (ii) prohibit investments made in the ordinary course of business only if not specifically targeted to an investment in OCFC or (iii) prohibit exercise of Investor’s rights under Section 4.4, Section 4.5 or elsewhere in this Agreement.
(d) As used herein, the term “beneficial ownership” (or any variation thereof) shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act; provided that the following will be deemed to be an acquisition of beneficial ownership of securities: (i) establishing or increasing a call equivalent position, with respect to such securities within the meaning of Section 16 of the Exchange Act; or (ii) entering into any swap or other arrangement that results in the acquisition of any of the economic consequences of ownership of such securities, whether such transaction is to be settled by delivery of such securities, in cash or otherwise.
Appears in 1 contract
Standstill. Executive agrees that for a period Except as otherwise provided in this Agreement, without the prior written consent of 18 months from the date of Executive’s termination of employment for any reasonTrustees (or following the Distribution Time, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board), acting 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 permitted by resolution approved this Agreement):
(i) 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; (ii) 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 a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardTrust or TPL Corp generally on a pro rata basis), directly or indirectly, 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, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining a group, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company Trust or TPL Corp (other than through a broad-based market basket or index) or any Subsidiaryvoting 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 aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the "SoftVest Cap") or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the "Mission Cap", and each 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 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 an amount of Sub-share Certificates or shares of the Common Stock that is greater than 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 acquisition 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 less than one-half of one percent 5.0% or more of the shares of Common Stock outstanding voting at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5.0% or more of the shares of Common Stock outstanding at such time, in each case, unless such Third Party is a passive investor that has not been a "reporting person" on a Schedule 13D and would not, in connection with purchasing or holding of securities of the CompanyTPL Corp, be required to file a Schedule 13D;
(bd) make(i) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person group or entity with respect to the voting agreement 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 kind with respect to any voting securities of the Company Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SubsidiariesSEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Distribution Time), or (ii) deposit any voting securities of the Trust or TPL Corp in any voting trust or subjecting any Trust or TPL Corp voting securities to any arrangement or agreement with respect to the voting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 actseek publicly, alone or in concert with others, to seek to propose amend any provision of the Governance Documents;
(f) demand an inspection of the Trust's or TPL Corp's books and records;
(g) make any (i) public or private (other than to the Company Trustees or any Subsidiary or any of their respective stockholders or make any public statement 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, business combinationin 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, consolidation(B) any change in the capitalization, saledividend or share repurchase policy of TPL Corp, tender offer(C) any other change in the Trust's or TPL Corp's business, exchange offeroperations, restructuringstrategy, reorganizationmanagement, dissolutiongovernance, liquidationcorporate structure, recapitalization or other transaction involving affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any Subsidiarysecurities 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) seekinitiate, 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, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Trust or TPL Corp or any of their subsidiaries, (iv) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Trust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in concert with others, to control, change the Trust or influence the management, the Board TPL Corp that would reasonably be expected to require a public announcement or policies of the Company or disclosure regarding 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 or any Subsidiarysuch matter;
(i) make enter into any publicly disclosed proposalnegotiations, public statement, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;
(j) publicly make or disclose in any way advance publicly any request or proposal to that the Trust or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(jk) announce an intention take any action challenging the validity or enforceability of this Section 3 or this Agreement, unless TPL Corp is challenging the validity or enforceability of this Agreement; provided, however, that (i) nothing in this Agreement shall prevent the Stockholders or Stockholder Designees from making (A) any factual statement in response to doa Legal Requirement, (B) any communication to the Trust or TPL Corp, or (C) any private communication to enter into any arrangement investors or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do prospective investors in any of the actions restricted Stockholders or prohibited under clauses any of their Affiliates, provided 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 paragraphs (a) through (jk) of this StandstillSection 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 take otherwise participating in any action that might result in such transaction on the Company having to make a public announcement regarding any same basis as the other stockholders of the matters referred 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 in clauses (a) through (j) the other terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, Agreement. Nothing in this Agreement shall limit the exercise in good faith by any action inconsistent with the foregoing.Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 1 contract
Sources: Stockholders' Agreement (Horizon Kinetics Asset Management LLC)
Standstill. Executive agrees The Ancora Parties each agree that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period (as hereinafter defined), neither Executive nor any of his the Ancora Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of MutualFirst:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an "Acquisition"), any voting securities of MutualFirst, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition Ancora Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyMutualFirst common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryMutualFirst;
(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;
(diii) form, join join, encourage, influence, advise or in any way participate in a “"group” " within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the Ancora Parties) with respect to any voting securities of MutualFirst or otherwise in any manner agree, attempt, seek or propose to deposit any securities of MutualFirst in any voting trust or similar arrangement, or subject any securities of MutualFirst to any arrangement or agreement with respect to the Company voting thereof (other than any such voting trust, arrangement or agreement solely among the SubsidiariesAncora Parties) 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 group involving the Ancora Parties as long as any additional member(s) agrees to be bound by the terms of this Agreement);
(eiv) 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, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary MutualFirst or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryMutualFirst;
(fv) 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 voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryMutualFirst;
(gvi) otherwise act, alone or in concert with others, to propose or seek to propose offer to the Company or any Subsidiary MutualFirst or any of their respective its 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 similar transaction involving to or with MutualFirst or 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, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of MutualFirst or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of MutualFirst, nominate any person as a director of MutualFirst who is not nominated by the then incumbent directors (provided that if there is a vacancy on the MutualFirst Board of Directors the Ancora Parties may submit suggestions on a confidential basis to the MutualFirst Board of Directors or representation on, or the Nominating Committee of the MutualFirst Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryMutualFirst;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of MutualFirst common stock beneficially owned by the Ancora Parties to any person that would reasonably be understood to be the beneficial owner of 5% or more of the outstanding shares of MutualFirst common stock, planexcept in a transaction approved by the MutualFirst Board of Directors;
(viii) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against MutualFirst or the Bank or their respective directors or officers, or arrangement (whether written or oral) inconsistent with the foregoingin any derivative litigation on behalf of MutualFirst, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillexcept for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillParagraph 2, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any MutualFirst annual meeting of stockholders during the Standstill Period, the Ancora Parties agree: (1) to vote all shares of MutualFirst they or any of them beneficially own in favor of the nominees for election or reelection as director of MutualFirst selected by the Board of Directors of MutualFirst and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any MutualFirst stockholder to a vote of the MutualFirst stockholders, to vote all of the MutualFirst shares they beneficially own in accordance with the recommendation of the MutualFirst Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇▇ or the Substitute in his capacity as a member of MutualFirst's Board of Directors or the Bank's Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the Ancora Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement directly with the President and Chief Executive Officer of MutualFirst, or otherwise intentionally takeupon invitation, with other members of management or solicitthe Board of Directors of MutualFirst. The "Standstill Period" shall begin as of the date of this Agreement and shall remain in full force and effect until the close of business on the date of the 2019 annual meeting of stockholders of MutualFirst. Notwithstanding anything in this Agreement to the contrary, at the sole option of MutualFirst, the Standstill Period may be terminated by MutualFirst in the event that the beneficial ownership of the Ancora Parties decreases below 5% of the outstanding shares of MutualFirst common stock (in which event M▇. ▇▇▇▇▇▇▇ or cause or encourage others to takethe Substitute, any action inconsistent with as the foregoingcase may be, shall promptly submit his resignation as a director of MutualFirst and the Bank).
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonthat, until October 9, 2019, neither Executive nor any of his Executive’s affiliates or representatives acting on Executive’s behalf or on behalf of other persons or entities acting at his direction or in concert with his assistance will, unless specifically invited Executive will in writing by the Board, acting by resolution approved by a majority of all members of the Boardany manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
: (a) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist, by purchasefacilitate or encourage any other person to effect or seek, tender offeroffer or propose (whether publicly or otherwise) to effect or participate in, exchange offer, through the (i) any acquisition of any securities (or control of another person or entitybeneficial ownership thereof), or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire any securities (or beneficial ownership thereof), or securities convertible into any assets, indebtedness or exchangeable for, any voting securities businesses of the Company or any Subsidiaryof its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other than business combination involving the acquisition in the aggregate of less than one-half of one percent Company, any of the outstanding voting securities subsidiaries or affiliates or assets of the Company;
Company or the subsidiaries or affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries or affiliates, (biii) makeany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates, or in any way participate in, directly or indirectly, alone or in concert with others, (iv) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of (the Exchange Act“SEC”)) 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 vote any voting securities of the Company or any Subsidiary;
of its affiliates; (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;
(db) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the (as defined under Securities Exchange Act of 1934, as amended) with respect to the Company or otherwise act in concert with any voting person in respect of any securities of the Company or the Subsidiaries;
Company; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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;
(gc) otherwise act, alone or in concert with others, to seek representation on or 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 control 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 obtain representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of on the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
; (id) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in which would or would reasonably be expected to force the Company having to make a public announcement regarding any of the types of matters referred to set forth in clauses (a) through above; or (je) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Executive also agrees during such period not to request (in any manner that would reasonably be likely to cause the Company to disclose publicly) that the Company or any of its representatives, directly or indirectly, amend or waive any provision of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingparagraph (including this sentence).
Appears in 1 contract
Sources: Separation and Release Agreement (Twinlab Consolidated Holdings, Inc.)
Standstill. Executive agrees that for For a period of 18 months from four years after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis Agreement, unless specifically invited in writing by the BoardCompany, acting by resolution approved by a majority of all members of the Boardeach Fund Member and its Representatives will not in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist or encourage any other Person to effect or seek, by purchaseoffer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its Affiliates (other than acquisitions of securities representing less than 3% of the Company’s then-outstanding voting securities), including rights or options to acquire such ownership; (ii) any tender offer, or exchange offer, through merger or other business combination involving the acquisition Company or control any of another person its Affiliates (other than tendering into any tender or entityexchange offer initiated by an Unaffiliated Person that the Board does not, within 10 Business Days after the commencement of such offer, recommend against); (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Affiliates, or otherwise(iv) any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1 of Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and including any direct otherwise exempt solicitation pursuant to Rule 14a-2(b)) or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options consents to acquire, or securities convertible into or exchangeable for, vote any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
its Affiliates; (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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 in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire any of its Affiliates or agree to acquire, directly or indirectly, alone or otherwise act in concert with others, by purchase, exchange or otherwise, (i) any of the 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 Person in any way participate, directly or indirectly, in any financing for the purchase respect of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
such securities; (gc) 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 mergercontrol, 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 controladvise, change or influence the management, the Board Board, governing instruments, shareholders, policies or policies affairs of the Company or any Subsidiary, of its Affiliates; (d) enter into any discussions or otherwise seek, alone or in concert arrangements 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement third party with respect to any provision of the Standstillforegoing; or
or (je) announce an intention to do, or to enter into make any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillpublic disclosure, or take any action that might result force the Company, any of its Affiliates or any other Person to make any public disclosure, with respect to the matters set forth in this Agreement. Each Fund Member agrees during such period that it will not request that the Company having to make a public announcement regarding (or any of the matters referred to in clauses (a) through (j) its Representatives), directly or indirectly, amend or waive any provision of this Standstillparagraph (including this sentence). Notwithstanding anything to the contrary herein, none of the provisions of this Article IV shall apply to any Affiliate of any Fund Member or otherwise intentionally takeits Representatives, unless such Affiliate or solicit, its Representatives are at such time in possession of any material non-public information of the Company received from such Fund Members or cause their Representatives or encourage others to take, any action inconsistent unless such Affiliate is a Permitted Transferee that received a Transfer of Equity Securities in compliance with the foregoingSection 3.1.
Appears in 1 contract
Sources: Stockholders Agreement (Coty Inc /)
Standstill. Executive (1) The Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any of his its affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited during the twelve (12) month period following the Subscription Closing Date, without the prior approval of M▇▇▇▇▇ Mining (in writing by the Boardcase of M▇▇▇▇▇ Mining or its subsidiaries (other than the Corporation or its subsidiaries)) or the Corporation (in all other cases) or as otherwise expressly permitted or contemplated under the Subscription, acting by resolution approved by a majority of all members of this Agreement or the BoardShareholder Agreement, directly or directly, indirectly, or jointly or in concert with any manner other person (as that expression is defined in the obligations pursuant to this Section 13 being referred to as, the “Standstill”Securities Act (Ontario)):
(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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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, by purchase or otherwise, individually or jointly or in concert with any other person (as that expression is defined in the Securities Act (Ontario)), any securities of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates or securities convertible into or exchangeable for securities of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates, or direct or indirect rights or options to acquire any securities of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates;
(b) directly or indirectly make, or in any way participate in, any solicitation of proxies to vote any securities of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates;
(c) otherwise act alone or in concert with othersothers to seek to control M▇▇▇▇▇ Mining, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company Corporation or any Subsidiary their respective affiliates or (ii) direct or indirect rightsto obtain representation on the board of directors of M▇▇▇▇▇ Mining, warrants or options to acquire any assets of the Company Corporation or any Subsidiarytheir respective affiliates, otherwise than explicitly set out in this Agreement;
(fd) arrange, or engage in any way participatediscussions or negotiations, directly enter into any agreement or indirectlysubmit a proposal or offer to M▇▇▇▇▇ Mining, 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 actCorporation, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders affiliates or shareholders relating to any business combination, take-over bid or similar transaction for the acquisition of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates; or
(e) make any public statement with respect announcement of any intention to do or take any mergerof the foregoing or take any action that could require M▇▇▇▇▇ Mining, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company Corporation or any Subsidiary;
(h) seek, alone or in concert with others, of their respective affiliates 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any a public announcement with respect to any provision of the Standstillforegoing; or
(jf) announce an intention attempt to doinduce any person not to make or conclude any proposal with respect to M▇▇▇▇▇ Mining, the Corporation or to enter into any arrangement of their respective affiliates by threatening or understanding with others (whether written indicating that Investor or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of its affiliates may take any of the actions restricted foregoing actions.
(2) This Section 3.01 shall cease to bind the Investor and its affiliates as of the date a person or prohibited under clauses persons jointly or in concert (aother than the Investor or its affiliates) through publicly announce its or their intention to commence a Change of Control transaction which would result in a Change of Control of the ownership of the Los Azules Project, or M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates publicly announces that any of their respective boards of directors has approved an agreement which contemplates a Change of Control transaction which would result in a Change of Control of the ownership of the Los Azules Project, whichever occurs first.
(j3) Notwithstanding any other provision of this StandstillSection 3.01, the Investor and its affiliates shall, with the prior consent of M▇▇▇▇▇ Mining, the Corporation or take any action that might result in of their respective affiliates (such consent not to fettered by any agreement to the Company having contrary with any third party), be permitted to (i) make a public announcement confidential proposal to the board of directors of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates regarding any of the matters referred to transactions or activities contemplated in clauses (a) through (j) this Section 3.01, provided that neither the Investor nor any of this Standstill, its affiliates shall make any public disclosure of the making of or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent terms of such proposal except with the foregoingprior written consent of M▇▇▇▇▇ Mining, the Corporation or any of their respective affiliates.
(4) This Section 3.01 shall survive the termination of the Agreement.
Appears in 1 contract
Standstill. Executive agrees that The PL Capital Parties each agree that, for a period of 18 months from time commencing at the date Closing and continuing for five years following the Closing (the "Standstill Period"), they and their affiliates and associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of Executive’s termination of employment for any reason1934, neither Executive nor any of his affiliates as amended (the "Exchange Act")) will not (and they will not assist or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of Central Bancorp:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, 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, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an "Acquisition"), any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyCentral Bancorp ("Securities");
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage 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 SubsidiaryCentral Bancorp;
(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 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 Securities of the Company or the SubsidiariesCentral Bancorp;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary Central Bancorp or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCentral Bancorp;
(fe) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities Securities or securities convertible or exchangeable into or exercisable for any voting securities Securities or assets of the Company or any SubsidiaryCentral Bancorp;
(gf) otherwise act, alone or in concert with others, others to seek to propose offer to the Company or any Subsidiary Central Bancorp or any of their respective its 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 similar transaction involving the Company to 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, Central Bancorp or otherwise seek, alone or in concert with othersothers to control or change the management, election board of directors or appointment to policies of Central Bancorp or representation on, or to nominate or propose any person as a director of Central Bancorp who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCentral Bancorp; or
(jg) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (jf) of this StandstillParagraph 2, or take publicly announce or disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingParagraph 2.
Appears in 1 contract
Sources: Stock Purchase Agreement (Central Bancorp Inc /Ma/)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement and continuing until the Termination Date, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing except pursuant to a negotiated transaction approved by the Board, acting by resolution approved by a majority of all members of the BoardStockholder and its Affiliates will not, in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquiremake, offer effect, initiate, cause or propose to acquireparticipate in (A) any acquisition of beneficial ownership of any securities of Commerce and its Related Entities, solicit an offer to sell or agree to acquire(B) any acquisition of any assets of Commerce and its Related Entities, directly or indirectly, alone or in concert with others, by purchase, (C) any tender offer, exchange offer, through the acquisition merger, business combination, recapitalization, restructuring, liquidation, dissolution or control of another person or entityextraordinary transaction involving Commerce and its Related Entities, or otherwise, involving any direct or indirect beneficial interest in any voting securities or direct assets of Commerce and its Related Entities or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, (D) any voting securities "solicitation" of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” "proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is those terms are 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 with respect to the Company’s or its Subsidiaries’ stockholdersany securities of Commerce;
(db) form, join or any way participate in a “"group” within " (as defined in the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder), pooling agreement, syndicate or voting trust with respect to the beneficial ownership of any voting securities of Commerce, or otherwise act in concert with another stockholder of securities of Commerce for the Company purpose of acquiring, holding, voting or the Subsidiariesdisposing of Commerce's securities;
(ec) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 control 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 or any SubsidiaryCommerce;
(id) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in the Company having force Commerce to make a public announcement regarding any of the types of matters set forth in clause "(a)" of this sentence;
(e) request or propose that Commerce (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this Section 3.2, including this subsection (e);
(f) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses "(a) through (j) of this Standstill)", or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing."
Appears in 1 contract
Standstill. Executive Purchaser agrees that that, for a period ending on the later to occur of 18 months from (ii) the second anniversary of the Closing Date and (ii) the date that the Purchaser no longer owns at least 7.5% of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe outstanding Common Stock (the “Standstill Period”), unless specifically invited in writing approved by the BoardBoard of Directors, acting by resolution approved by a majority of all members of the BoardPurchaser shall not, and shall cause its Affiliates, any investment fund or holding company directly or indirectly, managed or controlled by the Purchaser or any other Person acting on Purchaser’s behalf not to, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(a) acquireeffect, seek, publicly offer or publicly propose to acquireeffect, solicit an offer to sell or agree to acquirecause or participate in, directly or indirectly, alone or in concert with othersany way assist any other Person to effect, by purchaseseek, tender offerpublicly offer or publicly propose to effect or participate in, exchange offer, through individually or as part of a group:
(i) any acquisition of (x) any securities (or Beneficial Ownership thereof) that results in Purchaser Beneficially Owning more than 5% of the acquisition Company’s then outstanding Common Stock (excluding the Securities) or control (y) all or substantially all of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities the assets of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits Subsidiaries;
(bii) makeany tender or exchange offer, merger or in other business combination involving the Company or any way participate inof its Subsidiaries;
(iii) any recapitalization, directly restructuring, liquidation, dissolution or indirectly, alone other extraordinary transaction with respect the Company or in concert with others, any of its Subsidiaries; or
(iv) any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicitproxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission) stockholders or consents to vote any voting securities 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;
(db) form, join or in any way participate in a “group” within (as defined under the meaning of Section 13(d)(3Exchange Act) with respect to the securities of the Exchange Act Company;
(c) make any public announcement with respect to any voting securities extraordinary transaction or merger, consolidation, sale of substantial assets or business combination involving the Company or the Subsidiariesits securities or assets;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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;
(gd) 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 control or influence the management, the Board of Directors 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 Company; Table 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 or any Subsidiary;Contents
(ie) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in which would reasonably be expected to force the Company having to make a public announcement regarding any of the types of matters referred to set forth in clauses (a) through above; or
(jf) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided that in no event shall the provisions of this StandstillSection 5.7 prohibit the Purchaser from (i) receiving Common Stock as a result of dividends or stock splits authorized by the Board of Directors where all holders of the Common Stock participate on a ratable basis, (ii) at its option, increasing its Beneficial Ownership to include additional shares of Common Stock so long as the Purchaser does not Beneficially Own more than 5% of the Company’s then outstanding Common Stock (excluding the Securities), or otherwise intentionally take(iii) presenting a proposal on a confidential basis to the Board of Directors with respect to a transaction described in 5.7(a)(i)-(iii) above. Notwithstanding anything set forth herein, this paragraph 5.7 shall terminate upon (A) the acquisition by any person or group of beneficial ownership of voting securities of the Company representing 25% or more of the then outstanding voting securities of the Company; (B) the announcement or commencement by any person or group of a tender or exchange offer to acquire voting securities of the Company, which, (1) is recommended by the Board of Directors in a Schedule 14d-9 and (2) if successful, would result in such person or group owning, when combined with any other voting securities of the Company owned by such person or group, 20% or more of the then outstanding voting securities of the Company; or (C) the entry into by the Company of any merger, sale or other business combination transaction pursuant to which the outstanding shares of common stock of such party would be converted into cash or securities of another person or group or 50% or more of the then outstanding shares of common stock of the Company, or solicitsurviving, resulting or parent entity would be owned by persons other than the then current holders of shares of common stock of the Company, or cause which would result in all or encourage others a substantial portion of the Company’s assets being sold to take, any action inconsistent with the foregoingperson or group.
Appears in 1 contract
Standstill. Executive (a) Each Investor agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):acting alone or in concert with others:
(ai) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company business combination or any Subsidiaryother manner, other than the acquisition in the aggregate beneficial ownership of less than one-half of one percent of the outstanding voting any securities of the Company;
(bii) makesubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iii) engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of any the Common Stock or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(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;
(div) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities of agreement or pooling arrangement other than as set forth in the Company or Schedule 13D on the Subsidiariesdate hereof;
(ev) acquireseek to call, offer or to acquire or agree to acquirerequest the call of, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any a special meeting of the assetsCompany’s stockholders, tangible and intangible, or make a request for a list of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany’s stockholders;
(fvi) 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 vote for any voting securities nominee or assets of nominees for election to the Company Board, other than those nominated or any Subsidiarysupported by the Board;
(gvii) otherwise actexcept as specifically provided in Section 1 and Section 2 of this Agreement, 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 place a representative or other transaction involving the Company Affiliate, Associate or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, nominee on 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 seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (A) any matter to be voted upon by the stockholders acquisition of any material assets or businesses of the Company or any Subsidiaryof its subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (including through any arrangement having substantially the same economic or other effect as a sale, lease, exchange, pledge, mortgage, or transfer or assets); (B) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries;
(ix) make any demands for books and records and other materials pursuant to Section 220 of the DGCL or pursue any litigation related thereto against the Company, or to encourage, assist or cooperate with any third party with respect to any such demand(s) or litigation;
(x) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(xii) publicly request that the Company amend or waive any provision of Sections 2 and 3(a);
(xiii) enter into any agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities;
(xiv) provided, however, that nothing in this Section 3(a) or elsewhere in this Agreement shall prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director of the Company, from (1) taking any action or making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to any Co-Executive Chairman or the Chief Executive Officer or any other director of the Company; (B) an Investor Director, acting in his or her fiduciary capacity as a director of the Company, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to any Co-Executive Chairman or the Chief Executive Officer or another other officer or director of the Company; or (D) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of directors of the Company and the other matters referenced in Section 2(a).
(b) As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, planthe term “Affiliate” means a person that directly, or arrangement (whether written indirectly through one or oral) inconsistent with the foregoingmore intermediaries, controls, or make is controlled by, or disclose any request or proposal to amendis under common control with, waive or terminate any provision of this Standstill or seek permission to or make any public announcement the person specified with respect to the specific action at issue hereunder; the term “Associate” means any provision corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and any relative or spouse of the Standstill; or
(j) announce an intention to dosuch person, or any relative of such spouse, who has the same home as such person, in each case, with respect to enter into the specific action at issue hereunder; the term “control” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any arrangement individual, corporation (including not-for-profit), general or understanding with others (whether written limited partnership, limited liability company, joint venture, estate, trust, association, organization or oral) to do, other entity of any kind or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.nature; and
Appears in 1 contract
Sources: Settlement Agreement (Iroquois Capital Management, LLC)
Standstill. Executive agrees that for a During the period of 18 months from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Lock-Up Period (the “Standstill Term”), neither Executive the Investor nor any of his affiliates its Affiliates (collectively, the “Standstill Parties”) shall (and the Investor shall cause its Affiliates not to), except as expressly approved or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the BoardCompany:
(a) directly or indirectly, acting by resolution acquire beneficial ownership (as determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act) of shares of Common Stock or any securities convertible or exchangeable into Common Stock (excluding any shares of Common Stock acquired pursuant to the Transaction Agreements), or make a tender, exchange or other offer to acquire shares of Common Stock or any securities convertible or exchangeable into Common Stock;
(b) directly or indirectly, seek to have called any meeting of the stockholders of the Company, propose or nominate for election to the Company’s Board of Directors any person whose nomination has not been approved by a majority of all members the Company’s Board of Directors or cause to be voted in favor of such person proposed or nominated by the Board, Investor for election to the Company’s Board of Directors any shares of Common Stock;
(c) directly or indirectly, in knowingly encourage or support a tender, exchange or other offer or proposal by any manner Third Party with respect to shares of Common Stock or any securities convertible or exchangeable into Common Stock; provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 under the obligations pursuant to Exchange Act) by the Company recommending that stockholders accept any such offer or proposal, Investor shall not be prohibited from taking any of the actions otherwise prohibited by this Section 13 being referred to as, 8.2(c) only for so long as the “Standstill”):Company maintains and does not withdraw such recommendation;
(ad) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone solicit proxies or consents or become a participant 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” a solicitation (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) in opposition to the recommendation of proxies or consents a majority of the Company’s Board of Directors with respect to vote, whether subject to or exempt from the proxy rulesany matter, or seek to advise, encourage advise or influence any Person, with respect to voting of any shares of Common Stock; provided, however, that the Standstill Parties may solicit proxies or consents and may become a participant in a solicitation in connection with any manner whatsoever proposal that would adversely affect the Investor’s rights under the Transaction Agreements [***] (it being agreed that the foregoing proviso shall not relate to proposals for the nomination and/or election of directors and Company Equity Plans (as defined below));
(e) deposit any person shares of Common Stock in a voting trust or entity subject any shares of Common Stock to any arrangement or agreement with respect to the voting of such shares of Common Stock;
(f) propose (i) any voting securities merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or any Change of Control transaction involving the Company or (ii) any Subsidiaryrecapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
(cg) initiate, propose or “solicit” act in concert with any Third Party to take any action in clauses (as such term is used in the proxy rules of the Securities and Exchange Commissiona) 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 Actthrough (f) above, 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 in any way participate in a “partnership, limited partnership, syndicate, or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the SubsidiariesAct;
(eh) acquireenter into discussions, offer negotiations, arrangements or agreements with any Person relating to acquire or agree the foregoing actions referred to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (ia) any of the 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;
through (f) arrangeabove; provided, however, that nothing contained in this Section 8.2 shall prohibit the Investor or in its Affiliates from acquiring a company or business that owns shares of Common Stock or any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into Common Stock provided that any such securities of the Company so acquired will be subject to the provisions of this Section 8.2; or
(i) request or exercisable propose to the Company’s Board of Directors (or any committee thereof), any member(s) thereof or any officer of the Company that the Company amend, waive, or consider the amendment or waiver of, any provisions set forth in this Section 8.2 (including this clause (i)); provided, however, that (A) nothing contained in this Section 8.2 shall prohibit the Investor from making proposals to the Company’s Chairman or Chief Executive Officer on a confidential, nonpublic basis for a proposed transaction between the Parties of the type described in the foregoing clauses (a) and (f) or a proposal for a waiver or amendment of the type described in clause (i) above, in either such case so long as the Investor reasonably believes in good faith that neither it nor the Company would reasonably be expected to be required by applicable Law or stock exchange requirement to disclose publicly any such proposal and (B) nothing in the foregoing clause (b) shall prohibit the Investor from proposing to the Company’s Nominating and Corporate Governance Committee (and not pursuant to the advance notice provisions set forth in the Company’s bylaws), on a confidential, non-public basis, potential director candidates for consideration by the Company’s Nominating and Corporate Governance Committee, which candidates the Investor believes would be in the best interest of the Company and its stockholders, so long as the Investor reasonably believes in good faith, after consultation with its outside counsel, that neither it nor the Company would reasonably be expected to be required by applicable Law or stock exchange requirement to disclose publicly any such proposal. Neither (x) transfers or resales of the Shares by the Investor to any other person in compliance with Section 8.5 or (y) the mere voting securities of the Shares subject to Section 8.3 will be deemed to be a breach of the Investor’s standstill obligations under this Section 8.2.
(j) Section 8.2 shall terminate and have no further force or assets effect, upon the earliest to occur of:
(i) provided that none of the Standstill Parties has violated Section 8.2, the public announcement by the Company or any SubsidiaryThird Party of any definitive agreement between the Company and such Third Party and/or any of its Affiliates providing for a Change of Control;
(gii) otherwise act, alone or in concert with others, a Third Party commences a tender offer seeking to seek to propose to acquire beneficial ownership of more than 50% of the Company’s outstanding Common Stock and the Board of Directors of the Company has publicly supported the proposal or recommended that the stockholders tender their Common Stock in such tender offer;
(iii) (x) a bona fide tender offer by a Third Party which is not opposed by the Company’s Board of Directors (but only after the Company’s filing of a Schedule 14D-9, or any Subsidiary or any amendment thereto, with the SEC disclosing the recommendation of their respective stockholders or make any public statement the Company’s Board of Directors with respect to any merger, business combination, consolidation, sale, such 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 (y) an issuer tender offer by the stockholders Company; provided that Section 8.2 shall be reinstated and apply in full force according to its terms if any event set forth in this clause (iii), which resulted in the termination of the Company Section 8.2 is not completed or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillif such announced transaction is abandoned and no similar transaction has been announced and not abandoned; or
(jiv) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any the expiration of the actions restricted Standstill Term; provided, however, that if Section 8.2 terminates due to (x) clause (i) above and such definitive agreement is abandoned and no other definitive agreement providing for a Change in Control has been announced and not abandoned or prohibited under clauses terminated within ninety days thereafter or (ay) through clause (jii) above and the tender offer is withdrawn or abandoned or the Board of this Standstill, or take any action that might result in Directors of the Company having withdraws its recommendation in favor of such tender offer prior to make a public announcement regarding any the completion of the matters referred tender offer, the restrictions contained in Section 8.2 shall again be applicable until otherwise terminated pursuant to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 8.2(j).
Appears in 1 contract
Sources: Stock Purchase Agreement (Jounce Therapeutics, Inc.)
Standstill. Executive 5.1 Each Holder agrees that for a period of 18 months that, from the date hereof to the date that is twelve (12) months following the Closing Date (the “Standstill Period”), none of Executive’s termination it or its Affiliates under its control (or anyone acting on behalf of employment for any reason, neither Executive nor or at the direction of any of his affiliates or persons or entities acting at his direction or with his assistance such Persons) will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, do any of the following unless requested or approved in advance in writing by the Company:
i. engage in any manner (the obligations pursuant to this Section 13 being referred to as, the solicitation of proxies or consents or become a “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or participant” 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to votecall a special meeting of stockholders), whether subject to or exempt from the proxy rulesin each case, 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 SubsidiaryCompany;
(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) ii. form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act 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 Common Stock in any voting securities trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Company or the SubsidiariesHolders and otherwise in accordance with this Agreement;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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) arrangeiv. seek, or knowingly encourage any Person, to submit nominations in any way participate, directly or indirectly, in any financing furtherance of a “contested solicitation” for the purchase election or removal 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 directors with others, to seek to propose respect to the Company or seek, encourage or take any Subsidiary other action with respect to the election or removal of any of their respective stockholders or directors;
(A) make any public statement proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, business combinationacquisition, consolidation, sale, tender offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization disposition or other transaction business combination involving the Holders or their controlled Affiliates and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, 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 any Subsidiary(E) call or seek to call a special meeting of stockholders;
(h) vi. seek, alone or in concert with others, representation on the Board;
vii. knowingly seek to controladvise, change encourage, support or influence any person or entity with respect to the management, the Board voting or policies disposition of any securities of the Company at any annual or any Subsidiaryspecial meeting of stockholders, or otherwise seek, alone or except in concert accordance 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 or any Subsidiary;this Agreement; or
(i) viii. make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or submit any proposal to amend, waive or terminate any provision amend the terms of this Standstill or seek permission to or make any Agreement other than through non-public announcement communications with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having that would not be reasonably determined to make a trigger public announcement regarding disclosure obligations for any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingParty.
Appears in 1 contract
Sources: Senior Secured Convertible Notes Agreement (Comscore, Inc.)
Standstill. Executive agrees that for a period Prior to the Termination Date, except as otherwise expressly provided in this Agreement, without the prior written consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing Company (authorized by the Board), acting by resolution approved by a majority each of all the members of the BoardInvestor Group shall not, and shall instruct their Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, offer or propose to acquireoffer, 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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, purchase or otherwise, or cause or encourage or attempt to cause or encourage others to initiate direct any such stockholder proposal; or otherwise communicate with Third Party in 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) formacquisition of, join any Common Stock 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) any of the 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 Common Stock (collectively, “Company Securities”) or assets of the Company, or rights or options to acquire any Company Securities, or engage in any Subsidiaryswap instrument or derivative hedging transactions or other derivative agreements of any nature with respect to Company Securities; provided that the Investor Group may acquire beneficial ownership or economic exposure in the aggregate not exceeding nine and nine tenths percent (9.9%) of the Company’s outstanding Common Stock; or (ii) sell or otherwise transfer shares of Common Stock, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any Third Party that, to the Investor Group’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, being required to file or amend a Schedule 13D or Schedule 13G with respect to its or their ownership of securities of the Company;
(gi) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election or removal at any Stockholder Meeting at which the Company’s directors are to be elected or otherwise actseek representation on the Board; (ii) knowingly initiate or participate in, directly or indirectly, any solicitation of proxies or consents in respect of any election contest or removal contest at any Stockholder Meeting with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent of any business by any stockholder of the Company to be brought before any Stockholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies or consents in respect of any business by any stockholder of the Company to be brought before any Stockholder Meeting; (v) knowingly initiate, seek to advise, influence, encourage or participate in any “withhold,” “against,” “vote no,” defeat quorum or similar campaign with respect to any nomination or proposal made by or at the direction of the Board and brought before any Stockholder Meeting; (vi) 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, binding or non-binding (other than such encouragement, advice or influence that is consistent with the Company’s recommendation in connection with such matter); or (vii) request that, or knowingly encourage any person to request that, the Company call any Stockholder Meeting;
(c) form, join or in any way participate in any group or agreement of any kind with respect to any Voting Securities, including in connection with any election or removal contest with respect to the Company’s directors or any business by any stockholder of the Company to be brought before any Stockholder Meeting (other than with the members of the Investor Group or one or more of their Associates who are instructed to comply with the terms and conditions of this Agreement);
(d) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting thereof (other than (i) any such voting trust, arrangement or agreement solely among members of the Investor Group and (ii) as otherwise in accordance with this Agreement);
(e) seek publicly, alone or in concert with others, to alter, amend, change, waive or repeal any provision of, or adopt new provisions of, the Charter or Bylaws;
(f) demand an inspection of the stock list materials or the books and records of the Company or its subsidiaries;
(i) make any public proposal with respect to or (ii) make any public statement or otherwise seek to propose encourage, advise or assist any person with respect to any public proposals or statements related to (A) any change in the number or term of directors serving on the Board or the filling of any vacancies or newly created directorships on the Board, (B) any change in the capitalization or dividend policy of the Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or policies, (D) any Extraordinary Transaction or any material acquisition of any assets or businesses of the Company or any Subsidiary of its subsidiaries, (E) causing any class or series of the Company’s equity securities to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, (F) causing any class or series of their respective stockholders the Company’s equity securities to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, or make (G) any public statement intent, purpose, plan or proposal that is inconsistent 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 Subsidiarystandstill provisions of this Agreement;
(h) seekknowingly initiate, directly or indirectly, any unsolicited Extraordinary Transaction or make, directly or indirectly, any unsolicited proposal, either alone or in concert with others, to control, change the Company or influence the management, the Board (or policies any committee thereof) that would reasonably be expected to require a public announcement or disclosure regarding any such matter (it being understood that the foregoing shall not restrict the Investor 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);
(i) effect or seek to effect, offer or propose to effect, cause, or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any unsolicited: (i) material acquisition of any assets or businesses of the Company or any Subsidiaryof its subsidiaries; (ii) tender offer or exchange offer, merger, consolidation, acquisition, share exchange or other business combination involving any of the Voting Securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses (it being understood that each of the foregoing (i)-(iii) shall not restrict the Investor 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);
(j) enter into any negotiations, agreements, arrangements or understandings with any Third Party with respect to the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise seek, alone take or cause any action inconsistent with any of the foregoing;
(k) publicly make or in concert any way advance publicly any request or proposal that the Company or the Board (or any committee thereof) amend, modify or waive any provision of this Agreement; or
(l) take any action challenging the validity or enforceability of this Section 3 or this Agreement. Notwithstanding anything in this Agreement to the contrary, the restrictions in this Section 3 shall not prevent the members of the Investor Group from (1) making any factual statement or public disclosure as required by applicable legal process, subpoena or legal requirement from any governmental authority with otherscompetent jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of action by any of the members of the Investor Group or their Associates), election (2) making any confidential communication to the Company or appointment its directors and officers that would not be reasonably expected to or representation ontrigger public disclosure obligations for either Party, or to nominate (3) tendering shares of Common Stock, receiving payment for shares of Common Stock or propose otherwise participating in any transaction on the nomination of any candidate to, same basis as the Board or the removal of any member of the Board, or propose any matter to be voted upon by the other stockholders of the Company or from participating in any Subsidiary;
(i) make any publicly disclosed proposalsuch transaction that has been approved by the Board, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with subject to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision other terms of this Standstill or seek permission Agreement. Furthermore, for the avoidance of doubt, nothing in this Section 3 shall be deemed to or make any public announcement with respect to any provision limit the exercise in good faith by the New Directors of their fiduciary duties in their capacities as directors of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Standstill. Executive Servier agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the BoardAffiliate, acting by resolution approved by a majority alone or as part of all members of the Boardany group, shall directly or indirectly, in any manner (for a period commencing on the obligations pursuant to this Section 13 being referred to asEffective Date and ending *** after the Effective Date, without the “Standstill”):prior written approval of MacroGenics’ Board of Directors:
(a) acquire15.1.1 acquire or agree, offer offer, seek or propose to acquire, solicit an offer or cause to sell be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d 3 under the Securities and Exchange Act of 1934) of any of the assets or agree to acquire, directly businesses of MacroGenics or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entityany securities of MacroGenics, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companysuch ownership (including from a third party);
(b) 15.1.2 make, or in any way participate in***, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicitproxies” (as such term is terms are 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 Actvote, or otherwise, seek to advise or cause or encourage or attempt to cause or encourage others to initiate influence any such stockholder proposal; or otherwise communicate person with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented respect to the Company’s or its Subsidiaries’ stockholdersvoting of any voting securities of MacroGenics;
(d) 15.1.3 form, join or in any way participate in in, a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company or the SubsidiariesMacroGenics;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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) 15.1.4 otherwise act, whether 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 MacroGenics any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving the Company to or any Subsidiary;
(h) seekwith MacroGenics or otherwise act, whether alone or in concert with others, to seek to control, change *** of MacroGenics who is not nominated by the then incumbent directors,
15.1.5 solicit, negotiate with, or influence the managementprovide any information to, the Board any person with respect to a merger, exchange offer or policies liquidation of MacroGenics or any other acquisition of MacroGenics, any acquisition or voting securities of or all or any portion of the Company assets of MacroGenics or any Subsidiaryother similar transaction;
15.1.6 announce an intention to, 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 third party with respect to, the Board or the removal of any member of the Board, or propose foregoing; or
15.1.7 disclose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) *** inconsistent with the foregoing, or make advise, assist or disclose encourage any other persons in connection with any of the foregoing. In addition, Servier hereby agrees that during the term of this Agreement, it shall not request MacroGenics, directly or proposal indirectly, to amend, amend or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
ARTICLE 15, (jincluding this sentence.) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing***.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Term each Investor and FF Beneficial Investor and their respective Affiliates (other than the FF Investor) (collectively, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe “Standstill Parties”) shall not (and each Investor (other than the FF Investor) and the FF Beneficial Investor shall cause its Affiliates not to), unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardBoard of Directors (or any committee thereof) of the Company, directly or indirectly, 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 more than one percent (1%) of any class or in concert with others, by purchase, tender offer, exchange offer, through the acquisition series of any equity or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting debt securities of the Company or any Subsidiaryof its subsidiaries (whether by purchase, other than business combination, merger, consolidation, share exchange, joint venture or otherwise); provided, however, notwithstanding the acquisition foregoing, each Investor (together with its Affiliates) and the FF Beneficial Investor (together with its Affiliates), in the aggregate of less than one-half of one percent each case, may acquire securities of the outstanding voting Company in regular brokerage transactions on the public securities market, such that when taken together with the securities purchased pursuant to the Purchase Agreement, such entity beneficially owns (within the meaning of Section 13(d)(1) of the Exchange Act) up to 9.9% of any class or series of any equity or convertible debt securities of the Company;
(b) make, solicit proxies or consents or become a “participant” in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents with respect to vote, whether subject securities of the Company or initiate any stockholder proposal with respect to or exempt from the proxy rules, or Company;
(c) seek to advise, encourage control or influence in the management, Board of Directors or policies of the Company or any manner whatsoever any person or entity of its subsidiaries (other than communications with the Company’s management with respect to the voting Company’s business in the ordinary course), or take action for the purpose of convening a stockholders meeting of the Company;
(d) make any voting proposal or any public announcement (including, for the avoidance of doubt, indirectly by means of communication with the press or media) relating to a tender or exchange offer for securities of the Company or any Subsidiaryof its subsidiaries or relating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation, restructuring, recapitalization, or similar transaction involving the Company or its subsidiaries, or take any action that might require the Company to make a public announcement regarding any of the foregoing;
(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;
(de) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act with respect to any for the purpose of acquiring, holding, voting or disposing of 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) any of the assets, tangible and intangible, of the Company its subsidiaries or taking 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (jd) of this StandstillSection 3, or take any action that might result steps in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.connection therewith; or
Appears in 1 contract
Sources: Investor Agreement (TESARO, Inc.)
Standstill. Executive agrees that for a period Prior to the Termination Date, except as otherwise provided in this Agreement, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting the EC Parties shall not, and shall cause their respective Affiliates not to, directly or indirectly (in each case, except as permitted by resolution approved this Agreement):
(a) (i) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (except by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardCompany 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 Company or beneficial ownership thereof or any voting rights decoupled from the underlying voting securities in excess of 4.99% of the Company’s then-outstanding Common Stock; or (ii) sell its shares of Common Stock other than in open market sale transactions or through a broker or dealer where the identity of the purchaser is not known, or in underwritten widely dispersed public offerings;
(b) (i) nominate, recommend for nomination, 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 (or in connection with any proposed stockholder action by written consent); (ii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting (or in connection with any action by written consent); (iii) knowingly initiate, encourage or participate in any manner (the obligations pursuant “withhold” or similar campaign with respect to this Section 13 being referred to as, the “Standstill”):any Stockholder Meeting;
(ac) acquireengage in any solicitation of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal involving the Company or become a participant in any such solicitation of proxies or consents;
(d) initiate or seek the convening of (or assist any other Person in the convening of) any Stockholder Meeting (or assist any other Person in seeking any such action);
(e) form, offer join or propose in any way knowingly participate in any group or agreement of any kind with respect to acquireany voting securities of the Company, solicit an offer including in connection with any election or removal contest with respect to sell the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with any other EC Party or one or more of its Affiliates and Associates that agree to acquirebe bound by the terms and conditions of this Agreement);
(f) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, directly arrangement or indirectlyagreement solely among the EC Parties and their Affiliates and otherwise in accordance with this Agreement);
(g) seek publicly, alone or in concert with others, by purchaseto amend any provision of the Company’s certificate of incorporation or bylaws;
(h) demand an inspection of the Company’s books and records;
(i) engage or continue to engage or use any private investigations firm or other person to investigate any of the Company’s directors, tender offerofficers or employees or any of the Company’s Representatives or use any report or findings of such firm or person;
(i) make any public or private proposal with respect to or (ii) make any public statement or otherwise seek to encourage or advise or assist any Person in so encouraging or advising with respect to: (A) any change in the identity, exchange offernumber or term of directors serving on the Board or the filling of any vacancies on the Board, through (B) any change in the acquisition capitalization or control dividend policy of another person the Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or entitypolicies, or otherwise(D) any Extraordinary Transaction, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiary, other than the acquisition in the aggregate securities exchange or (F) causing a class of less than one-half of one percent of the outstanding voting equity securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules Company to become eligible for termination of the Securities and Exchange Commission promulgated registration pursuant to Section 14 12(g)(4) 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;
(ck) 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) any of the 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, make or in any way participate, directly or indirectly, in any financing Extraordinary Transaction (it being understood that the foregoing shall not restrict any EC Party from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets same basis as other stockholders of the Company or from participating in any Subsidiary;
(gsuch transaction that has been approved by the Board, subject to the other terms of this Agreement) otherwise actor make, directly or indirectly, any proposal, either alone or in concert with others, to seek to propose to the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any Subsidiary such matter;
(l) publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of their respective stockholders this Agreement;
(m) take any action challenging the validity or make enforceability of this Section 3 unless the Company is challenging the validity or enforceability of this Section 3; or
(n) enter into any public statement negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, facilitate encourage or seek to persuade any Third Party to take any action 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or otherwise 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with any of the foregoing.
Appears in 1 contract
Standstill. Executive (a) Each Investor agrees that for a period of 18 months that, except as expressly permitted elsewhere in this Agreement, from the date of Executive’s termination of employment for any reasonEffective Date until the Termination Date, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board, directly or indirectly, in neither it nor 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 acquireof its controlled Affiliates shall, directly or indirectly, alone or in concert with others, by purchasein any manner:
(i) publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, tender offersingly or with any other person, exchange offerdirectly or indirectly, through the (A) any form of business combination or acquisition or control other transaction relating to a material amount of another person assets or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiaryof its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries, or (C) any form of tender or exchange offer for the Common Stock or the Series A Preferred Shares, whether or not such transaction involves a Change of Control of the Company;
(ii) engage in any solicitation of proxies or written consents to vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or knowingly encourage, assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to any voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;
(iii) acquire, offer, or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any interests in any of the Company’s indebtedness, Common Stock, Series A Preferred Shares, or other equity interests in the Company (including any rights decoupled from the underlying securities of the Company, but excluding Common Stock issued in connection with a stock split, stock dividend or similar corporate action initiated by the Company with respect to any securities beneficially owned by any of the Investors and/or any Affiliate), in each case, if such acquisition, offer, proposal or agreement would result in the Investors acquiring beneficial ownership (amongst all of the Investors and any Affiliate) in excess of 17.20% of the shares of Common Stock and Series A 6| Preferred Shares outstanding (on an as converted to common basis); provided, however, any purchase pursuant to Section 1(g) hereof shall be excluded from the limitations provided herein;
(iv) acquire or agree, offer, seek, or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) in one or a series of related transactions, a majority or more 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 the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(bv) makeseek to advise, encourage, support or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner consistent with Section 2;
(vi) take any public action in support of or make any public proposal or request that constitutes: (A) advising, controlling, changing, or influencing the Board or management of the Company or its subsidiaries, including any plans or proposals to change the number or term of directors, to elect directors, to fill any vacancies on the Board, or to remove directors, (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company or its subsidiaries, (C) any way participate inother material change in the Company’s management, directly business, or indirectlycorporate or governance structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, operations, business, corporate strategy, corporate structure, capital structure or allocation, share repurchase or dividend policies or other actions that may impede or facilitate the acquisition of control of the Company by any 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, in each case except as permitted expressly by this Agreement;
(vii) initiate, propose, or otherwise “solicit” stockholders of the Company for the approval of any stockholder proposals (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) other than in accordance with Section 2;
(viii) communicate with stockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act other than in a manner consistent with Section 2;
(ix) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Company’s Certificate of Incorporation or Bylaws, including, but not limited to, a “town hall meeting;”
(x) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Common Stock or Series A Preferred Shares in any voting trust or similar arrangement or subject any Common Stock or Series A Preferred Shares to any voting agreement or pooling arrangement, other than (A) 7| customary brokerage accounts, margin accounts and prime brokerage accounts and (B) otherwise in accordance with this Agreement;
(xi) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” (as such term is used in for the proxy rules election or removal of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity directors with respect to the voting Company or, except as expressly provided in this Agreement, seek, encourage or take any other action with respect to the election or removal of any voting securities of the Company or any Subsidiarydirectors (it being acknowledged that those public communications that are permitted and those SEC filings that are required under this Agreement shall not constitute such encouragement);
(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;
(dxii) form, join or in any other way participate in any a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the securities of the Company (other than a “group” that includes all or some of the Investors, but does not include any other entities or persons that are not members of the Investor Group as of Effective Date); provided, further, that the Investor Group Schedule 13D shall not be amended to add additional members to the Investor Group other than persons that are wholly owned as of the Effective Date by an existing member of the Investor Group, so long as any such additional wholly owned member agrees to be bound by the terms and conditions of this Agreement;
(xiii) commence, join, encourage, or support any lawsuit, arbitration, or other legal claim against the Company or any of its officers or directors, including without limitation any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors provided, however, that nothing in this clause (xii) will in any way limit the rights of either party under this Agreement or any other agreement between the parties, including by (A) commencing litigation to enforce such rights, or (B) making counterclaims with respect to any voting proceeding initiated by, or on behalf of, the Company against an Investor;
(xiv) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intent, purpose, plan, or proposal with respect to the Board, the Company, its management, policies, or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xv) make any request or submit any proposal to amend the terms of this Section 3 other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xvi) take any action challenging the validity or enforceability of any of the provisions of this Section 3 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section 3; 8|
(xvii) make any public communication in opposition to (A) any merger, acquisition, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination or (B) any financing transaction, in each case involving the Company or any of its subsidiaries;
(xviii) call or seek to call any special meeting of the Company (other than calling or the Subsidiaries;
(e) acquire, offer seeking to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any call a special meeting of the assets, tangible holders of the Series A Preferred Shares pursuant to the Series A Certificate of Designation) or action by consent resolutions or make any request under Section 220 of the Delaware General Corporation Law or other applicable legal provisions regarding inspection of books and intangible, records or other materials (including stocklist materials) of the Company or any Subsidiary of its subsidiaries; or
(xix) advise, assist, knowingly encourage, or seek to persuade any person or entity to take any action or make any statement inconsistent with any of the foregoing.
(b) Notwithstanding anything in Section 3(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict any Investor or the Class 1 Series A Director from (i) communicating privately with any director on the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) direct identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or indirect rightsthe Company, warrants are not publicly disclosed by the Investor Group or options its Affiliates and are undertaken on a basis reasonably designed to acquire be confidential, (iii) privately communicating to any assets of their investors or potential investors information regarding the Company based on publicly available information, provided, that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed, (iv) communicating with stockholders of the Company or any Subsidiary;
and others in a manner that does not otherwise violate Section 3(a) of this Agreement, (fv) 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 making a public statement about how such Investor intends to vote and the reasons therefor with respect to any mergerpublicly announced Change of Control transaction, business combination(vi) exchanging, 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 Subsidiarytendering, or otherwise seekparticipating in any tender or exchange offer with respect to the Common Stock or Series A Preferred Shares, alone whether or in concert not such transaction involves a Change of Control of the Company, on the same basis as the other stockholders of the Company, (vii) taking any action necessary to comply with othersany law, election or appointment to or representation onrule, or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over an Investor, or (viii) exercising any right permitted under the Series A Certificate of Designation and transaction documents related to nominate the purchase of the Series A Preferred Shares, including calling upon the Company to call a special meeting for the purpose of electing Series A Preferred Directors.
(c) As of the Effective Date, none of the Investors are engaged in any discussions or propose negotiations and do not have any agreements or understandings, written or oral, whether or not legally enforceable, concerning the nomination acquisition of beneficial ownership of any candidate to, the Board or the removal of any member securities of the BoardCompany, or propose and have no actual knowledge that any matter to be voted upon by the other stockholders of the Company have any present or future intention of taking any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with actions that if taken by the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do Investors would violate any of the actions restricted or prohibited under clauses (a) through (j) terms of this StandstillAgreement. For the avoidance of doubt, or take any action that might result nothing in this 9| Agreement shall be deemed to limit the Company having to make exercise in good faith by the Class 1 Series A Director of his fiduciary duties in his capacity as a director of the Company.
(d) Except as otherwise provided in this Agreement, this Agreement shall automatically terminate upon the public announcement regarding any of a transaction that will constitute a Change of Control involving the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Sources: Cooperation Agreement (Lifecore Biomedical, Inc. \De\)
Standstill. Executive agrees that If this Agreement is terminated, then, for a period of 18 months from two years after the date of Executive’s termination such termination, IP and each of employment for any reasonits successors or assigns will not, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(ai) acquire, offer or propose or otherwise seek to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersby merger, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, beneficial ownership of any assets or in excess of 1% of any class of securities of UCC or its Affiliates or any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire (through purchase, exchange, conversion or securities convertible into otherwise) any assets or exchangeable for, in excess of 1% of any voting class of securities of the Company UCC or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits Affiliates;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is used terms are defined in Rule 14a-1 of Regulation 14A promulgated by the proxy rules SEC as of the Securities and Exchange Commission promulgated date hereof, disregarding clause (iv) of Rule 14a-1(1)(2), but including any solicitation exempted pursuant to Section 14 Rule 14a-2(b)
(1) to vote (including by the execution of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesactions by written consent), or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company or any SubsidiaryUCC;
(ciii) 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 Actcall, or otherwisein any way participate in a call for, any meeting of shareholders of UCC (or cause or encourage or attempt take any action with respect 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’ stockholdersshareholders acting by written consent);
(div) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company UCC; or
(v) otherwise act to control or influence, or seek to control or influence, UCC or the Subsidiaries;
(e) acquiremanagement, offer to acquire Board of Directors, policies or agree to acquireaffairs of UCC, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwiseincluding without limitation, (iA) making any of the assets, tangible and intangible, of the Company offer or any Subsidiary or (ii) direct or indirect rights, warrants or options proposal 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 UCC or any Subsidiary;
(g) otherwise actof its Affiliates or soliciting or proposing to effect or negotiate any form of business combination, alone restructuring, recapitalization or in concert with othersother extraordinary transaction involving UCC, to seek to propose to the Company or any Subsidiary its Affiliates or any of their respective stockholders securities or make any public statement with respect to any mergerassets, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) 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 seeking board representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member directors or a change in the composition or size of the BoardBoard of Directors of UCC, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iC) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose making any request to amend or proposal to amend, waive or terminate any provision of this Standstill Section 8.09, (D) disclosing any intent, purpose, plan or seek permission to or make any public announcement proposal with respect to matters covered by this Section 8.09 or UCC, its Affiliates or the boards of directors, management, policies or affairs or securities or assets of UCC or its Affiliates that is inconsistent with this Section 8.09, including an intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this StandstillSection 8.09, or take any action that might result in the Company having could require UCC or any of its Affiliates to make a any public announcement regarding disclosure relating to any such intent, purpose, plan, proposal or condition, or (E) assisting, advising or encouraging any person with respect to, or seeking to do, any of the matters referred foregoing; provided, however, that this Section 8.09 shall not apply if UCC does not pay any portion of the Termination Fee when due or if IP terminates this Agreement as a result of a willful breach of this Agreement by UCC; provided, further, that, if this Section 8.09 is effective against IP (and each of its successors and their respective Affiliates) during any such two-year period after the date of any such termination, and either (x) UCC shall have entered into an agreement with respect to any transaction that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of either the voting securities of UCC then outstanding or the assets of UCC and the UCC Subsidiaries, taken as a whole or (y) any Person or "group" (as defined in clauses (a) through (jSection 13(d)(3) of the Exchange Act) (other than UCC or any of its Affiliates (excluding, for this Standstillpurpose, UCC's management acting independently of UCC)) shall have commenced any tender or exchange offer that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of the voting securities of UCC then outstanding which offer is recommended by UCC's Board of Directors to its shareholders, then at the time of the public announcement of such agreement or of the commencement of such offer, as applicable, this Section 8.09 shall terminate and have no further force or effect and there shall be no rights, liabilities or obligations under this Section 8.09 on the part of IP, UCC, MergerSub, or otherwise intentionally takeany of their respective officers, directors, shareholders, agents or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAffiliates.
Appears in 1 contract
Sources: Merger Agreement (Union Camp Corp)
Standstill. Executive agrees that for a period Each of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardShareholder Group agrees that, directly during the Standstill Period, he or indirectlyit will not, in any manner (the obligations pursuant to this Section 13 being referred to asand he or it will cause each of such person's Affiliates or agents or other persons acting on his or its behalf not to, the “Standstill”):and will cause his or its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities shares of the CompanyCommon Stock;
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(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 in or in any other way participate in a “"partnership, limited partnership, syndicate or other group” " within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities 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 Subsidiariesmeaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a "participant" in any contested "solicitation" for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a "solicitation" or acting as a "participant" in support of all of the nominees of the Board at the 2011 Annual Meeting or the 2012 Annual Meeting as set forth in this Agreement;
(e) acquireseek, offer in any capacity, to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone 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 purchasethis Agreement;
(f) effect or seek to effect, exchange in any capacity (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution 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 other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment 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) 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 publicly disparage any member of the BoardBoard or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit the Shareholder Group from (i) making public statements (including statements contemplated by Rule 14a-1 (1) (2) (iv) under the Exchange Act), (ii) engaging in discussion with other stockholders or (iii) soliciting, or encouraging or participating in the solicitation of, proxies or consents with respect to voting securities of the Company (so long as such discussions are in compliance with Section 5(c) hereof) in each case with respect to any transaction that has been publicly announced by the Company involving (1) the recapitalization of the Company, (2) an acquisition, disposition or sale of assets or a business by the Company where the consideration to be received or paid in such transaction requires approval by the holders of the Common Stock or (3) a change of control of the Company.
Appears in 1 contract
Standstill. Executive agrees that for For a period of 18 months five (5) years from the date Closing Date (as such term is defined in Section 2(a)(i) of Executive’s termination of employment for any reasonthe Stock Purchase Agreement), neither Executive nor LDC shall not, and shall not permit any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates to, directly or indirectly, in any manner (i) without the obligations pursuant to this Section 13 being referred to as, prior written consent of 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 othersCompany, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, agree to acquire or securities convertible into or exchangeable for, offer to acquire beneficial ownership of any voting securities of the Company or direct or indirect rights or options to acquire such beneficial ownership (including, without limitation, any Subsidiary, other than the voting trust certificates representing such securities) if such acquisition would result in the aggregate beneficial ownership by LDC and all Affiliates of less than one-half LDC of one voting securities having voting power equal to or in excess of fifteen percent (15%) of the outstanding then aggregate voting securities power of the Company;
, (bii) enter, propose to enter into, solicit or support any merger or business combination or change of control or other similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the business or assets of the Company or any of its subsidiaries other than in the ordinary course of business, (iii) initiate or propose any matter for submission to a vote of the shareholders of the Company or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise or influence any person with respect to the voting of, the Common Stock or any other voting securities of the Company or request or take any action to obtain any list of shareholders of the Company for such purposes, (iv) form, join or in any way participate in any group (other than a group composed solely of LDC and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to the Common Stock or any other voting securities of the Company that would be required under Section 13(d) of the Exchange Act to file a Schedule 13D with respect to such voting securities, (v) deposit any shares of Common Stock or any other voting securities of the Company in a voting trust or enter into any voting agreement or arrangement with respect thereto, (vi) seek representation on the Board (other than as contemplated by Section 7(b) of the Stock Purchase Agreement), the removal of any directors from the Board or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 3.2, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of the foregoing, (x) assist, advise, encourage or influence in any manner whatsoever negotiate with any person with respect to, or entity seek to do, any of the foregoing or (xi) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company. Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its Affiliates from responding to any inquiries from any stockholders of the Company as to LDC’s or any such Affiliate’s intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by LDC or any Subsidiary;
(c) initiate, propose or “solicit” (such Affiliate so long as such term response 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 consistent with the Company’s terms of this Agreement, (ii) prohibit the purchase or its Subsidiaries’ stockholders other acquisition of beneficial ownership of Common Stock 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 other voting securities of the Company in compliance with Section 3.2(i) or (iii) restrict the Subsidiaries;
(eright of any director on the Board designated by LDC as contemplated by Section 7(b) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, Stock Purchase Agreement to vote on any matter as such designee believes appropriate in light of his duties as a director of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets the manner in which such designee may participate in his capacity as a director of the Company in deliberations or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase discussions at meetings 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 as a member 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingcommittee thereof.
Appears in 1 contract
Standstill. Executive agrees that From and after the date of this Agreement and for a period of 18 months from five years, none of the date of Executive’s termination of employment for any reason, neither Executive Shareholders nor any of his affiliates or persons or entities acting at his direction or with his assistance willtheir Related Persons, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):shall:
(a) acquire, offer solicit proxies or propose to acquire, solicit an offer to sell be or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control become a member of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” a group which solicits proxies (as such used herein, the term is used "proxy" shall have the meaning provided in the proxy rules of Regulation 14A promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange Act) for the purpose of proxies or consents to vote, whether subject to or exempt (i) removing from the proxy rulesoffice, or seek nominating or voting for a candidate to adviserun in opposition to, encourage or influence in any manner whatsoever any person who is serving as a director of UNIT at the date of this Agreement or entity with respect any person who may hereafter be elected to the voting board of any voting securities directors of UNIT as a result of the Company nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement, or (ii) vote against or otherwise opposing any Subsidiary;matter which has been proposed or recommended by the board of directors of UNIT which is then comprised of persons at least a majority of which are persons serving as directors of UNIT at the date of this Agreement and any persons who may hereafter be elected to the board of directors of UNIT based upon the nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement; or
(cb) initiatepermit any entity under his, 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 her or its Subsidiaries’ stockholders control (including but not limited to subsidiaries and employee pension, profit sharing or others in connection with the solicitation of proxies or consents or matters presented to the Company’s other trusts under his, her or its Subsidiaries’ stockholders;
(dinvestment management control) form, join to acquire 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 purchase or otherwise, (i) any of the assets, tangible and intangible, of the Company UNIT Common Stock or any Subsidiary option to purchase UNIT Common Stock; or
(c) acquire or (ii) direct or indirect rights, warrants or options offer to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participateagree to acquire, directly or indirectly, by purchase or otherwise shares of UNIT Common Stock or any option to purchase UNIT Common Stock by any Person; or
(d) finance or arrange the financing or participate in the financing of the acquisition of UNIT Common Stock by any financing Person; or
(e) join or permit any Related Person of its to join a partnership, limited partnership, syndicate, or other group for the purchase purpose of any voting securities acquiring or securities convertible holding of UNIT Common Stock within the meaning of Section 13(d) of the Exchange Act; or
(f) initiate, propose or exchangeable into or exercisable otherwise solicit shareholders for any voting securities matter at any time, or assets induce or attempt to induce any other Person to initiate any stockholder proposal or a tender offer for shares of the Company UNIT Common Stock or any Subsidiary;change of control of UNIT, or for the purpose of convening a stockholders' meeting of UNIT; or
(g) otherwise actother than in connection with the Contemplated Transaction, alone acquire or in concert with otherspermit any entity under his, her or its control (including but not limited to seek subsidiaries and employee pension, profit sharing or other trusts under his, her or its investment management control) to propose acquire, by purchase or otherwise, more than 5% of any class of equity securities of any entity which, prior to the Company or any Subsidiary or any time such entity acquires more than 5% of their respective stockholders or make any public statement with respect to any mergersuch class, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving is 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 Subsidiarybeneficial owner of, or otherwise seek, alone or in concert with others, election or appointment intends to or representation on, or to nominate or propose the nomination acquire more than 5% 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillUNIT Common Stock; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Unit Corp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. Executive Each Seller Affiliate agrees that during the period commencing on the Effective Date and ending immediately following the final certification of the voting results for a period the 2028 Annual Meeting of 18 months from Stockholders of the date of Executive’s termination of employment for any reasonCompany (such period, the “Standstill Period”), neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (manner, acting alone or in concert with others, take any of the obligations pursuant to this Section 13 being referred to as, following actions without the “Standstill”):prior written consent of the Company or its Board of Directors:
(a) (i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire 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, alone or in concert with others, by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining or entitymaintaining 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 any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities capital stock of the Company or any Subsidiary, other than voting rights decoupled from the acquisition underlying voting securities that would result in the aggregate Seller Affiliates and their Affiliates owning, controlling or otherwise having any beneficial or other ownership interest of, in the aggregate, more than 100,000 shares of less than one-half Common Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the Effective Date) (excluding any ownership of one percent of Common Stock that the outstanding voting securities of Board Designees may be deemed to beneficially own pursuant to an equity award granted by the Company);
(b) other than in accordance with the recommendations of the Board of Directors, (i) make, submit, initiate, knowingly encourage or participate in (or provide notice of, or publicly disclose, an intention to do any of the foregoing) any proposal with respect to, or (ii) engage in any way participate in“solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies, directly consents or indirectly, alone consent revocations or otherwise become a “participant in concert with others, any “a solicitation” (as such term is used defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) with respect to: (A) any change in the proxy rules 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 any election contest or removal contest with respect to the Company’s directors, (B) any change in the capitalization, dividend policy, or share repurchase programs of the Securities and Exchange Commission promulgated Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure 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 14 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 or knowingly induce or encourage any other person with respect to (i) pursuing any change in the Company’s management, governance, business, operations, strategy, corporate structure or policies, or (ii) the giving or withholding of proxies any proxy, consent or consents other authority to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in conducting any manner whatsoever any person or entity type of referendum with respect to the Company, whether binding or non-binding (other than such encouragement that is consistent with the Board of Directors’ recommendation in connection with such matter or with respect to any matter for which the Seller Affiliates have voting discretion pursuant to, and in accordance with, Section 4.3), provided that nothing shall limit the giving by the Seller Affiliates of a proxy or consent in respect of any matter so long as the voting of 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 voting securities 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 Subsidiaryof 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;
(cf) initiate, propose form 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 “partnership, limited partnership, syndicate or other ‘group’” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities the capital stock of the Company (other than a “group” that consists solely of all or some of the Subsidiariespersons parties to this Agreement or Affiliates or Associates thereof); provided, for clarity, that the foregoing shall not prohibit any non-controlling investment in a partnership, limited liability company, corporation, fund or other entity merely on the basis that such entity is a beneficial owner of shares of capital stock of the Company so long as such investment is not made for purposes of circumventing the restrictions in this Section 4.2;
(eg) 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 (i) any such voting trust, arrangement or agreement solely among the Seller Affiliates or their respective Affiliates and/or Associates, (ii) customary brokerage accounts, margin accounts and prime brokerage accounts, (iii) granting any proxy in any solicitation approved by the Board of Directors and consistent with the recommendation of the Board of Directors, (iv) granting any proxy in any solicitation in connection with any matter for which the Seller Affiliates have voting discretion pursuant to, and in accordance with, Section 4.3 of this Agreement or (v) otherwise in accordance with this Agreement;
(h) vote for any nominee or nominees for election to the Board of Directors, other than those nominated or supported by the Board of Directors not in violation of the terms of this Agreement;
(i) acquire or agree to acquire, offer 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, directly offer, seek or indirectlypropose to acquire, alone or in concert with others, by purchase, exchange or otherwise, ownership (iincluding beneficial ownership) of any of the assets, tangible and intangible, assets or businesses of the Company or any Subsidiary of its subsidiaries or (ii) direct or indirect rights, warrants any rights or options to acquire any such assets of the Company or business from any Subsidiaryperson;
(fj) arrangeother than at the express written request of the Board of Directors, seek or propose or solicit or negotiate with, or in provide any way participate, directly or indirectly, in non-public information to 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 person with respect to any a merger, business combination, consolidation, saleacquisition of control, tender offer, or exchange offer, restructuringpurchase, reorganizationsale, license or other transfer of assets or securities, any other business combination, dissolution, liquidation, recapitalization reorganization, spin-off or other spin-out, share repurchase or similar transaction involving the Company, its subsidiaries or its business; provided, however, that nothing in this Section 4.2 shall be interpreted to prohibit the Seller Affiliates from proposing, suggesting or recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Seller Affiliates and is made by the Seller Affiliates in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Seller Affiliates or any Subsidiaryother person;
(hk) seeksell, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiaryassign, or otherwise seek, alone transfer or in concert with others, election or appointment to or representation ondispose 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 nominate any person that, to the Seller Affiliates’ knowledge (after reasonable 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 propose otherwise having any beneficial or other ownership interest in the nomination aggregate of more than 4.9% of the Company’s outstanding shares of the Common Stock at such time or would increase the beneficial ownership interest of any candidate toperson who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the Board or the removal aggregate of any member more than 4.9% of the Board, or propose any matter to be voted upon by the stockholders Company’s outstanding shares of the Company Common Stock at such time, (ii) is listed on SharkWatch50 or any Subsidiaryhas otherwise directly or indirectly run or publicly disclosed an intention to run a proxy contest or submitted stockholder nominations or proposals with respect to another publicly-traded company within the last five (5) years or (iii) is as of the Effective Date a Schedule 13D filer with respect to the Company;
(il) make any publicly disclosed proposal, public statement, public inquiry request or public disclosure of any intention, planpublicly advance, or arrangement (whether written or oral) inconsistent with the foregoingdisclose privately in a manner that could reasonably be expected to become public, or make or disclose any request or proposal to amend, modify or waive or terminate any provision of this Standstill Agreement;
(m) engage in any short sale or seek permission to any purchase, sale or make grant of any public announcement 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, in each case that would result in the Seller Affiliates failing to have an aggregate net long position (as defined in Rule 14e-4 under the Exchange Act) in the Company;
(n) take any action challenging the validity or enforceability of any provision of the Standstillthis Agreement; or
(jo) announce an intention to do, or to enter into any arrangement negotiations, agreements or understanding understandings with others (whether written or oral) any third party to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result the Seller Affiliates or any of their Affiliates or Associates are prohibited from taking pursuant to this Section 4.2. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Seller Affiliates from (x) communicating privately with the members of the Board of Directors, executive officers or general counsel of the Company (or any other individuals in the Company having to make a public announcement authorized by such individuals) 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, (y) taking any action required to comply with any law, rule, or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over any Seller Affiliates or their Affiliates or Associates, or (z) tendering shares, receiving payment for shares or otherwise participating in any transaction that is consummated following the Closing on the same basis as other stockholders of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Sources: Stock Purchase Agreement (Keros Therapeutics, Inc.)
Standstill. Executive The Investor agrees that for a period of 18 months from the date hereof and until one year following the date hereof (the “Standstill Period”), it will not, and will also ensure that no member of Executive’s termination of employment for any reason, neither Executive the Investor Group nor any Person acting on behalf of his affiliates or persons or entities acting at his direction or in concert with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Investor nor any member of the BoardInvestor Group, will directly or indirectly, in any manner without the prior written consent of the Company: (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly propose, seek 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 interest in any voting securities or direct or indirect rights, warrants or options offer to acquire, or securities convertible into facilitate the acquisition or exchangeable forownership of, any voting securities of the Company or any Subsidiaryof its Subsidiaries, or any warrant, option or other than direct or indirect right to acquire any such securities that (taken together with all Shares and other voting securities held by the acquisition in the aggregate of less than one-half of one percent Investor Group) exceeds 19.9% of the then outstanding voting securities shares of Common Stock; (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company;
Company or any of its Subsidiaries; (biii) initiate, encourage, make, or in any way participate or engage in, directly or indirectly, alone or in concert with others, any “solicitation” (of “proxies” as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity Person with respect to the voting of of, any voting securities of the Company Company; (iv) file with the Commission a proxy statement or any Subsidiary;
(c) initiate, propose supplement thereof or “solicit” (as such term is used any other soliciting material in the proxy rules of the Securities and Exchange Commission) stockholders respect of the Company or any Subsidiary for its stockholders that would be required to be filed with the approval of stockholder proposals whether made Commission pursuant to Rule 14a-8 14a-12 or Rule 14a-4 under other provisions of the Exchange Act; (v) except as set forth in Sections 6.3 or 6.4, nominate or otherwise, or cause or encourage or attempt to cause or encourage others to initiate recommend for nomination a Person for election at any such stockholder proposal; or otherwise communicate with meeting at which directors of the Company’s board of directors are to be elected; (vi) submit any stockholder proposal for consideration at, 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;
bring any other business before, any Company stockholder meeting; (dvii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company Company; (ix) call, request the calling of, or otherwise seek or assist in 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) any calling of a special meeting of the assets, tangible and intangible, stockholders of the Company or any Subsidiary or Company; (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;
(gx) 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 control or influence the management, management or 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 or any Subsidiary;
Company; (ixi) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, planplan or arrangement prohibited by, or arrangement (whether written or oral) inconsistent with with, the foregoing, ; or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jxii) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do or enter into any of the actions restricted discussions, negotiations, agreements or prohibited under clauses (a) through (j) of this Standstill, or take arrangements with any action that might result other Persons in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent connection with the foregoing.
Appears in 1 contract
Standstill. Executive Recipient agrees that for a period of 18 months from that, prior to one year after the date hereof, Recipient will not (and will ensure that its affiliates that control, are controlled by or are under common control with it (as defined in the rules under the Exchange Act) and any person acting on behalf of Executive’s termination of employment for or in concert with Recipient or any reasoncontrolled affiliate will not), neither Executive nor alone or with others, directly or indirectly, take any of his affiliates or persons or entities acting at his direction or with his assistance will, the following actions unless specifically Recipient is first invited in writing by the BoardBoard of Directors of Vertex to make such action:
a. Purchase or otherwise acquire (or enter into any agreement or make any proposal to purchase or otherwise acquire) record or beneficial ownership of any securities (which, acting by resolution approved by a majority for purposes of all members this Agreement, includes, without limitation, indebtedness) of Vertex, any warrant or option to purchase such securities, any security convertible into or exchangeable for any such securities or any other right to acquire such securities;
b. Propose to Vertex or its security holders, or make any announcement with respect to, any Transaction between Recipient, any of its affiliates or Recipient and any other person, on the Boardone hand, directly and Vertex or indirectlyany of its security holders, in on the other hand, or involving Vertex or any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):of its securities or security holders;
(a) acquirec. Effect or seek, offer or propose (whether publicly or otherwise) to acquireeffect or participate in (i) any acquisition of the assets of Vertex or any of its subsidiaries, solicit an offer (ii) any tender or exchange offer, merger or other business combination involving Vertex or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to sell Vertex or agree any of its subsidiaries;
d. Seek to control or influence Vertex, its management, Board of Directors (including without limitation by affecting the composition of the Board of Directors) or policies through the solicitation of proxies, consents, or otherwise or make or in any participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of securities of Vertex;
e. Seek to advise or influence any person with respect to the voting of securities of Vertex;
f. Assist, advise, encourage, or provide any information or financing to any other persons seeking 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 Vertex, its management, Board of Directors, policies, securities, business or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyassets;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any 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) any of the 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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose g. Make any request or proposal to amendwaive, waive amend or terminate any provision of this Standstill Agreement or seek permission to or make permit Recipient to take any public announcement action prohibited herein; or
h. Take any initiative with respect to any provision of the Standstill; or
(j) announce an intention to do, Vertex or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having its subsidiaries which could require Vertex to make a public announcement regarding any such prohibited initiative or action referred to in this Section. Notwithstanding the foregoing, (i) if any third party that is not an affiliate of Recipient publicly makes (x) a tender or exchange offer or other bona fide offer (including an offer for a privately negotiated transaction) to acquire directly or indirectly securities of Vertex under circumstances such that, immediately after such acquisition, such third party would beneficially own more than 15% of any class of such securities, or (y) a proposal or offer for a merger, consolidation or other business combination directly or indirectly involving Vertex or a proposal or offer to acquire directly or indirectly all or substantially all of the matters assets of Vertex (any proposal or offer referred to in clauses (ax) through or (jy) being herein called a "Business Combination Proposal"), which Business Combination Proposal is either (A) not withdrawn or terminated within five days after such Business Combination Proposal is made or (B) accepted by the Board of Directors of Vertex, the restrictions set forth in this StandstillSection shall not be deemed to preclude Recipient from making a Business Combination Proposal; provided that the restrictions set forth in this Section shall again be applicable in accordance with their terms upon the withdrawal or termination of the original Business Combination Proposal or the rejection thereof by the Board of Directors of Vertex, or otherwise intentionally take, or solicit, or cause or encourage others except to take, any action inconsistent with the foregoingextent Recipient has previously publicly announced a Business Combination Proposal as permitted by this sentence.
Appears in 1 contract
Sources: Confidentiality Agreement (Vertex Communications Corp /Tx/)
Standstill. Executive agrees that The PL Capital Parties each agree that, for a period of 18 months from time commencing at the date Closing and continuing for five years following the Closing (the “Standstill Period”), they and their affiliates and associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of Executive’s termination of employment for any reason1934, neither Executive nor any of his affiliates as amended (the “Exchange Act”)) will not (and they will not assist or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of Central Bancorp:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, 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, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an “Acquisition”), any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyCentral Bancorp (“Securities”);
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage 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 SubsidiaryCentral Bancorp;
(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 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 Securities of the Company or the SubsidiariesCentral Bancorp;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary Central Bancorp or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCentral Bancorp;
(fe) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities Securities or securities convertible or exchangeable into or exercisable for any voting securities Securities or assets of the Company or any SubsidiaryCentral Bancorp;
(gf) otherwise act, alone or in concert with others, others to seek to propose offer to the Company or any Subsidiary Central Bancorp or any of their respective its 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 similar transaction involving the Company to 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, Central Bancorp or otherwise seek, alone or in concert with othersothers to control or change the management, election board of directors or appointment to policies of Central Bancorp or representation on, or to nominate or propose any person as a director of Central Bancorp who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCentral Bancorp; or
(jg) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (jf) of this StandstillParagraph 2, or take publicly announce or disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingParagraph 2.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer acquire beneficial ownership in excess of 17.5% of the outstanding shares of Common Stock (based on the latest annual 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary15(d) of the Exchange Act), other than the acquisition in of equity-based compensation pursuant to Section 10 hereof and the aggregate exercise of less than oneany options or conversion of any convertible securities comprising such equity-half of one percent of the outstanding voting securities of the Companybased compensation;
(b) makesubmit 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 in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(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 in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the SubsidiariesNew Director or any of their respective Affiliates as a result of this Agreement;
(d) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used 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) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the stockholders of the Company, or indirectlyseek to make, alone 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 purchaseentering into any discussions, exchange 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 the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (fother than the Shareholder Group and their Affiliates) arrangewould 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 way participatetransferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 7, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or the New Director to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 6 hereof or this Section 7, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember 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 seek, alone or in concert with others, election or appointment to or representation onotherwise, 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 communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right or arrangement 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;
(j) 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
(k) take or cause or induce or assist others to take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or make required in order to comply with his fiduciary duties as a director of the Company or disclose (y) the Shareholder Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any request shares or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement proxies with respect to any provision Sale Transaction that has been approved by a majority of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of Board and has been announced by the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Sources: Shareholder Agreement (Intevac Inc)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless (a) Except as specifically invited in writing approved by the Board, acting by resolution approved by a majority of all members of the BoardInvestor shall not, directly or indirectly: (i) by purchase or otherwise (including through hedging or derivative transactions), in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer agree to acquire 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 interest in any voting securities acquire Company Securities or direct or indirect rights, warrants rights or options to acquire Company Securities (including any voting trust certificates representing such securities) that would result in the Investor Beneficially Owning more than twenty percent (20%) of the Common Stock outstanding at the time of any of the foregoing actions; (ii) enter, propose to enter into, solicit or support any merger, business combination or similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or securities convertible into acquire or exchangeable for, solicit or support the purchase or acquisition of any voting securities portion of the business or assets of the Company or any Subsidiaryof its subsidiaries, other than in each case, if such forgoing transaction would result in a Change of Control; (iii) initiate or propose any shareholder proposal without the acquisition in the aggregate of less than one-half of one percent approval of the outstanding voting securities of the Company;
(b) Board granted in accordance with this Agreement or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules promulgated by the Commission under the Exchange Act) to vote, or seek to advise or influence any Person with respect to the voting of, any Company Securities or request or take any action to obtain any list of shareholders of the Securities and Exchange Commission promulgated pursuant Company for such purposes with respect to Section 14 any matter (or, as to such matters, solicit any Person in a manner that would require the filing of a proxy statement under Regulation 14A of the Exchange Act); (iv) form, join or in any way participate in a Group formed for the purpose of proxies (A) acquiring, holding, voting or consents disposing of or taking any other action with respect to voteCompany Securities or (B) effecting a Change of Control of the Company; (v) deposit any Company Securities in a voting trust or enter into any voting agreement or arrangement with respect thereto (other than this Agreement); (vi) seek representation on the Board, whether subject to or exempt the removal of any directors from the proxy rulesBoard, or a change in the size or composition of the Board; (vii) make any request to amend or waive any provision of this Section 2.2, except to the extent such request is made on a confidential basis solely to the Board; (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal; (ix) take any action challenging the validity or enforceability of this Section 2.2; or (x) assist, advise, encourage or negotiate with any Person with respect to, or seek to advisedo, encourage any of the foregoing.
(b) The restrictions in Section 2.2(a) shall not prevent the Investor, following the Closing Date, from purchasing shares of the Common Stock in the secondary market in an amount such that (after giving effect to any such purchases) the Investor Beneficially Owns no more than twenty percent (20%) of the then outstanding Common Stock (the “Ownership Cap”).
(c) Nothing in this Section 2.2 shall prohibit or influence in restrict the Investor from: (i) responding to any manner whatsoever inquiries from any person or entity shareholders of the Company as to the Investor’s intention with respect to the voting of any voting securities Company Securities Beneficially Owned by the Investor so long as such response is consistent with the terms of this Agreement; or (ii) making any confidential proposals to the Board in respect of any matter, so long as such proposal does not require a public announcement by the Company, the Investor or any Affiliate 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;Investor.
(d) formIf the Board shall, join or at any way participate time and in a “group” within good faith, reasonably determine that the meaning Investor Beneficially Owns shares of Section 13(d)(3) Common Stock in excess of the Exchange Act Ownership Cap, the Company shall ask the Investor to reduce the level of such Beneficial Ownership to an amount below the Ownership Cap. If the Investor does not effect such reduction within ten (10) Business Days of the date on which it is so advised by the Company, the Company shall have the power (i) to call for the purchase by the Company from the Investor of a number of shares of Common Stock sufficient to bring such Beneficial Ownership to no more than the Ownership Cap (such number of shares of Common Stock being the “Excess Shares”), and (ii) to refuse to transfer or issue Company Securities to the Investor until such time that such Beneficial Ownership is equal to or less than the Ownership Cap. The purchase price per share for the Excess Shares shall be equal to the weighted-average closing sales price per share for the Common Stock as reported by NASDAQ or other national securities exchange on which the Common Stock are then listed for the five (5) trading days preceding such purchase. Payment of the purchase price shall be made in cash by the Company no later than five (5) Business Days after the Company has provided written notice to the Investor that the Company intends to exercise its call right pursuant to this paragraph (d). From and after the payment of such purchase price by the Company, the Beneficial Owner of the Excess Shares shall cease to be entitled to distributions, voting rights and other benefits with respect to such Excess Shares. If the Company does not grant an exemption from the ownership restrictions set forth in this Section 2.2, then any voting securities action described in Section 2.2(a) that would result in the Investor Beneficially Owning shares of Common Stock in excess of the amounts permitted by this Section 2.2 shall be deemed void ab initio and the Investor shall be deemed never to have had an interest in the applicable Company Securities. If the foregoing provision is determined to be void or invalid by virtue of any legal decision, judgment, statute, rule or regulation, then the Investor shall be deemed, at the option of the Company, to have acted as agent on behalf of the Company or in acquiring such Company Securities and to hold such Company Securities on behalf of the Subsidiaries;Company.
(e) acquireNotwithstanding the Company’s rights under Section 2.2(d) above, offer if the Investor shall, at any time and in good faith, reasonably determine that the Investor Beneficially Owns shares of Common Stock in excess of the Ownership Cap as a result of any action taken by Company (including, without limitation, any share buy-back), the Investor shall have the right (but not the obligation) to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of sell to the assetsCompany, tangible and intangible, of the Company or any Subsidiary shall be obligated to purchase from the Investor, the Excess Shares or (ii) direct or indirect rights, warrants or options sell the Excess Shares in the market subject to acquire any assets compliance with applicable law. For purposes of the Company or any Subsidiary;
immediately preceding clause (f) arrangei), or in any way participate, directly or indirectly, in any financing the purchase price per share for the purchase of any voting Excess Shares shall be equal to the average closing sales price per share for the Common Stock as reported by NASDAQ or other national securities or securities convertible or exchangeable into or exercisable exchange on which the Common Stock are then listed for any voting securities or assets the five (5) trading days preceding such purchase. Payment of the purchase price shall be made in cash by the Company or any Subsidiary;
no later than five (g5) otherwise act, alone or in concert with others, to seek to propose Business Days after the Investor has provided written notice to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect that the Investor intends 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;
exercise its put right pursuant to this paragraph (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 or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoinge).
Appears in 1 contract
Standstill. Executive (a) ▇▇▇▇▇▇▇ Global agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting 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 interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;:
(bi) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-l of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents directly or indirectly recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of stockholders) or grant a proxy, consent or other authority with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(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;
(dii) form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities the Common Stock (other than a “group” that includes all or some of the Company persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the Subsidiariesdate hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of ▇▇▇▇▇▇▇ Global to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(eiii) acquiredeposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, offer to acquire other than any such voting trust, arrangement or agree to acquire, directly or indirectly, alone or agreement solely among the members of ▇▇▇▇▇▇▇ Global and otherwise in concert accordance with others, by purchase, exchange or otherwise, (i) any of the 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 Subsidiarythis Agreement;
(fiv) arrangeseek, or encourage any person, to submit nominations in any way participate, directly or indirectly, in any financing furtherance of a “contested solicitation” for the purchase election or removal 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 directors with others, to seek to propose respect to the Company or seek, encourage or take any Subsidiary other action with respect to the election or removal of any of their respective stockholders or directors;
(A) make any public statement proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, business combinationacquisition, consolidation, sale, tender offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization disposition or other transaction business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or any Subsidiarydisposition activity approved by the Board;
(hvi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any nominee or nominees for election to controlthe Board, change other than those nominated or influence supported by the managementBoard;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or 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 seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders (other than such encouragement, support or influence that is consistent with Company’s management or the Board’s recommendation in connection with such matter);
(x) other than through action at the Board by the New Director acting in his capacity as a director of the Company, seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(xi) 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 capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries, its Affiliates or its business(es), whether or not any such transaction involves a change of control of the Company (any of the transactions or events described in this subsection (xii), a “Transaction”);
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any matter to be voted upon Common Stock of the Company representing in the aggregate (among ▇▇▇▇▇▇▇ Global and its Affiliates and Associates) in excess of 15% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the stockholders Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by ▇▇▇▇▇▇▇ Global on the date of this Agreement);
(xiii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(xiv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 3(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any Subsidiary;Transaction that has been approved by a majority of the Board and has been announced by the Company, ▇▇▇▇▇▇▇ Global from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies consistent with the Board’s recommendation in connection with such matter.
(b) As used in this Agreement:
(i) make the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include (A) any person that is a publicly disclosed proposalheld corporation or organization and is an Affiliate or Associate solely by reason of the fact that a principal or representative of ▇▇▇▇▇▇▇ Global serves as a member of the board of directors or similar governing body of such corporation or organization, public statement(B) any principal or representative of ▇▇▇▇▇▇▇ Global solely in its capacity as a member of the board of directors or similar governing body of a publicly held corporation or organization, public inquiry or public disclosure (C) any corporation or organization that is an Associate of a person solely because such person, directly or indirectly, is the beneficial owner of 10% or more of any intention, plan, class of equity securities of such corporation or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision organization and is not an Affiliate of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or 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 (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.such person;
Appears in 1 contract
Sources: Board Composition Agreement (Career Education Corp)
Standstill. Executive agrees The Investor Parties agree that for a period of 18 months from until the date that is six (6) months after the date that the 10% Beneficial Ownership Requirement is no longer satisfied (the “Standstill Expiration Date”), without the prior written approval of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardInvestor Parties will not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause their Affiliates not to:
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal 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, purchase or otherwise, any direct or indirect beneficial interest in any voting equity securities or direct or indirect rightsrights to acquire any equity securities of the Company, warrants or options to acquire, or any securities convertible into or exchangeable forfor 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;
(b) 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, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any Subsidiaryof 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 (other than the acquisition in Investor Director pursuant to the aggregate nomination rights provided herein) or seek the removal of less any director from the Board (other than one-half of one percent of the outstanding voting securities of Investor Director pursuant to the Companydirector removal rights provided herein);
(bc) makemake any public announcement with respect to, or offer, seek, propose or indicate an interest in any way participate in, directly (in each case with or indirectly, alone or in concert with otherswithout conditions), any “solicitation” (as such term is used in the proxy rules merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies assets, properties 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 Subsidiary of the Securities and Exchange Commission) stockholders Company, or any other extraordinary transaction involving the Company or any Subsidiary 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 Acttheir respective securities, or otherwiseenter into any discussions, negotiations, arrangements, understandings or cause agreements (whether written or encourage or attempt to cause or encourage others to initiate oral) with any such stockholder proposal; or otherwise communicate with other Person regarding any of 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’ stockholdersforegoing;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act other than with respect to any voting securities Investor Director acting in his or her capacity as a member of the Company or the Subsidiaries;
(e) acquireBoard, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of 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 control or influence, in any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergermanner, 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 board of directors or policies of the Company or any Subsidiaryof its Subsidiaries;
(e) make any proposal or statement of inquiry or disclose any intention, plan or otherwise seekarrangement inconsistent with any of the foregoing;
(f) advise, alone assist, knowingly encourage or in concert with others, election or appointment direct any Person to or representation ondo, or to nominate advise, assist, knowingly encourage or propose the nomination of direct any candidate toother Person to do, the Board or the removal of any member of the Board, foregoing;
(g) take any action that would require the Company to make a public announcement regarding the possibility of a transaction or propose any matter to be voted upon by the stockholders of the Company events described in this Section 4.06;
(h) enter into any agreements, arrangements or understandings with any Subsidiarythird party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing;
(i) make request the Company or any publicly disclosed proposalof its Representatives, public statementdirectly or indirectly, public inquiry to amend or waive any provision of this Section 4.06; provided that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.06, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(j) contest the validity of this Section 4.06 or make, initiate, take or participate in any intentiondemand, plan, Action (legal or arrangement (whether written or oralotherwise) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 4.06; provided, however, that nothing in this Section 4.06 will limit (1) the Investor Parties’ ability to vote (subject to Section 4.10), Transfer or seek permission Hedge (subject to Section 4.07), convert shares of Series A Preferred Stock into Common Stock (subject to Section 6 of the Certificate of Designations), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, privately make and submit to the Company and/or the Board any proposal that is intended by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expect to require public announcement disclosure by any Person), participate in rights offerings made by the Company to all holders of its Common Stock, receive any dividends or similar distributions with respect to any provision securities of the Standstill; or
(j) announce an intention to doCompany held by the Investor Parties, tender shares of Common Stock or to enter Series A Preferred Stock into any arrangement tender or understanding with others exchange offer (whether written subject to Section 4.07), effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or oralotherwise exercise rights under its Common Stock or Series A Preferred Stock that are not the subject of this Section 4.06 or (2) to do, or to finance, intentionally advise, enable, assist or encourage others to do any the ability of the actions restricted Investor Director to vote or prohibited under clauses (a) through (j) of this Standstill, otherwise exercise his or take any action that might result her legal duties or otherwise act in the Company having to make his or her capacity as a public announcement regarding any member of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingBoard.
Appears in 1 contract