Standstill. 11.1 For a period of five (5) years after the date hereof (the Standstill Period), Manchester shall not, and shall cause each of its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 3 contracts
Samples: Relationship Agreement (Misys PLC), Relationship Agreement (Allscripts-Misys Healthcare Solutions, Inc.), Framework Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Standstill. 11.1 For a period of five (5) years after the date hereof (the Standstill Period), Manchester shall not, and shall cause each of its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares Coniston Closing Percentage or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares Coniston Closing Percentage or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 2 contracts
Samples: Relationship Agreement (Misys PLC), Relationship Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Standstill. 11.1 For Other than pursuant to the preemptive rights set forth in Article III, as contemplated by the Purchase Agreement, any exercise of the Warrant or actions taken by the Series A Director in his/her capacity as a period member of five the Board in light of such director’s fiduciary duties, until the earlier of (5a) years after the 3rd anniversary of the date hereof hereof, (b) the Standstill Periodexpiration of the right of Series A Requisite Investors to elect the Series A Director, and (c) the date on which the Investors and their Affiliates beneficially own less than 5% of the shares of Common Stock then issued and outstanding, the Investors shall not (provided, that the foregoing limitation shall only apply to the “Power Opportunities” and “Opportunities” strategies of the Investors, and not to any other strategies of the Investors, the Investors’ Affiliates or any of its or their other investments or portfolio companies), Manchester shall not, and shall cause each of its Subsidiaries not to, except as expressly approved or invited in writing by the Company: (i) directly or indirectly, acquireacquire beneficial ownership of Common Stock or Common Stock Equivalents or any instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of Common Stock (a “Derivative”); (ii) make a tender, seek exchange or other offer to acquire Common Stock or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise Common Stock Equivalents; (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a wholeiii) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if seek to have called any meeting of the Emerald Closing does occur (but stockholders of the Contingent Repurchase does not occur)Company or propose any matter to be voted upon by the stockholders of the Company, 2% above the Emerald Closing Percentage or (2) if propose or nominate for election to the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser Board of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is Directors any person whose nomination has not been approved by the Audit Committee a majority of the Arsenal Board prior to of Directors (excluding the consummation thereof, Series A Director); (iiiv) propose to enter into or seek to effect, directly or indirectly, alone knowingly encourage or in concert with otherssupport a tender, any merger, consolidation, recapitalization, reorganization exchange or other business combination involving Arsenal offer or proposal by any other Person or group (an “Offeror”) for Common Stock (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”); 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 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be prohibited from taking any of its Subsidiaries or to purchase, the actions otherwise prohibited by this Section 5.1 for so long as the Board of Directors maintains and does not withdraw such recommendation; (v) directly or indirectly, alone knowingly solicit proxies or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries consents or become a “participant” participant in a “solicitation” of proxies solicitation (as such terms are defined in Regulation 14A under the Exchange Act); (vi) publicly propose (1) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses or any similar transaction involving the Company or (2) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case with respect without the prior written consent of the Board (a transaction described in clauses (1) and (2) that would result in a Change of Control, is referred to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, “Business Combination”); (vvii) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together knowingly act in concert with any person other than Manchester, Third Party to take any action in clauses (i) through (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, above; (viii) for so long as a Manchester Director is serving on the Arsenal Boardmake any public announcement regarding, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any the Company to make a public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law announcement regarding, a potential Business Combination or any UK Regulatory Requirement. Nothing of the matters set forth in this Section 11.1 shall limit Manchester’s power and right to purchase clauses (i) through (vii) above; or acquire, directly (ix) enter into any arrangements or indirectly, agreements with any Person relating to the foregoing actions referred to in (an Acquired Personi) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition through (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (xvii) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effectabove; provided, however, that nothing contained in this Section 5.1 shall prohibit the event Manchester Investor or any of its Subsidiariestheir Affiliates from making confidential, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes non-public proposals to the Board of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted TransactionDirectors.
Appears in 2 contracts
Samples: Form of Investor Rights Agreement (Tpi Composites, Inc), Investor Rights Agreement (Tpi Composites, Inc)
Standstill. 11.1 For On the Effective Date, each of the Purchaser Parties will deliver to New Osisko a period of five (5) years after the date hereof (covenant that it will not, during the Standstill Period), Manchester shall not, and shall cause each Period (defined below) without the consent of its Subsidiaries not to, New Osisko: (i) directly or indirectly, acquire, seek offer to acquire or make an offer agree to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) by purchase or otherwise, more than the lesser of (A) 175% of the then issued any voting securities or securities convertible into or exchangeable for voting securities (with notice to be provided to New Osisko when 1% of any voting securities or securities convertible into or exchangeable for voting securities have been acquired, and outstanding Arsenal Shares or (B) (for each additional 1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur% acquired thereafter), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occursdirect or indirect rights or options to acquire any voting securities, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, New Osisko; (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participateparticipate in, directly or indirectly, in any “solicitation” solicitation of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, proxies to vote or act by written consentvote, or seek to advise or influence any other person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities voting securities of Arsenal New Osisko; (iii) otherwise seek to control or influence the management, directors or corporate policies of New Osisko or to obtain representation on New Osisko’s board of directors; (iv) engage in any of its Subsidiaries discussions or become a “participant” negotiations, enter into any agreement or submit any proposal or offer (with or without conditions) in a “solicitation” of proxies connection with any business combination or other acquisition transaction or extraordinary transaction involving New Osisko; or (as such terms are defined in Regulation 14A under the Exchange Act), in each case v) enter into any discussions or arrangements with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, any third party with respect to any other matterof the foregoing; or make any public announcement of any intention to do or take any of the foregoing. The “Standstill Period” shall be the period commencing on the Effective Date and ending on the earlier of (i) the fifth anniversary of the Effective Date, or (vii) deposit any Equity Securities the date upon which New Osisko shall have approved or entered into, or announced the approval or entering into of, an agreement, transaction or series of related transactions with a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchestersuch Purchaser Party, (vi) form, join, knowingly influence, participate in a person under common control with such Purchaser Party or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause person acting jointly or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent concert with the foregoing or (xia “Third Party”) publicly disclose a willingness or desire to have any other Person engage in, any of having as its object the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17not less than 20% of the then issued outstanding voting or equity securities of New Osisko or assets of New Osisko or its subsidiaries (or both) Yamana representing not less than 20% of the net asset value or contribution to earnings of New Osisko and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionits subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Arrangement Agreement (Agnico Eagle Mines LTD), Arrangement Agreement (Yamana Gold Inc.)
Standstill. 11.1 For a period The Investors agree that until the later of five (5x) years after the third anniversary of the date hereof (the Standstill Period), Manchester shall notof this Agreement, and shall (y) the date on which the Investors no longer have the right to designate or nominate a Director Nominee pursuant to Section 1, without the prior written consent of the Company, such Investors will not at any time, nor will they cause each or permit any of its Subsidiaries not their respective controlled Affiliates (as defined in the Purchase Agreement) to: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person (as defined in the Purchase Agreement) to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) directly any acquisition of any securities (or indirectlybeneficial ownership thereof), acquire, seek or rights or options to acquire any securities (or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transactionbeneficial ownership thereof), or any number assets, indebtedness or businesses of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly Company or indirectly, an aggregate number of Arsenal Shares representing its Subsidiaries (as a percentage) more than defined in the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occurPurchase Agreement), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into any tender or seek to effectexchange offer, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization merger or other business combination involving Arsenal the Company or any of its Subsidiaries or to purchase, directly assets of the Company or indirectly, alone or in concert with others, its Subsidiaries constituting a material significant portion of the business or consolidated assets of Arsenal or any of the Company and its Subsidiaries, or (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its Subsidiaries; (b) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, Company or the execution of a written consent otherwise act in concert with any Person in respect of any Equity Securities such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of Arsenal the Company or to obtain representation on the Board of the Company (other than pursuant to the terms of this Agreement); (d) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of its Subsidiaries the types of matters set forth in clause (a) above; or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case e) enter into any discussions or arrangements with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, any third party with respect to any other matterof the foregoing; it being understood that nothing in this Section 3 shall (x) restrict or prohibit the Appointed Director from taking any action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary to fulfill his or her fiduciary duties as a member of the Board (vy) deposit restrict the Investors’ acquisition of any Equity Securities into a voting trust paid as dividends or subject any such Equity Securities acquired pursuant to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation Section 4 of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in each case, in accordance with the recommendation terms of this Agreement, or (z) restrict the Investors acquisition of equity or debt securities of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester Company or any of its Subsidiaries, at any time after an Excepted Transactionor voting such securities (subject to the provisions of Section 2) and otherwise exercising its rights and privileges with respect to such securities, directly so long as such acquisition, voting or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% exercise of the then issued rights and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does privileges, would not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each constitute a violation of clauses (Aa)(ii) and (B), to any Excepted Transactioniii) or (b) through (e) above.
Appears in 2 contracts
Samples: Investor Rights Agreement (Act III Holdings LLC), Investor Rights Agreement (BJs RESTAURANTS INC)
Standstill. 11.1 For a period 7.1 Subscriber agrees that until the earlier of five (5) years after the date hereof (the Standstill Period), Manchester shall not, and shall cause each of its Subsidiaries not to, (i) directly the third (3rd) anniversary of the First Step Investment Closing and (ii) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), without the prior written consent of the Issuer, it will not at any time, nor will it cause or indirectlypermit any of its affiliates to: (a) effect or seek, acquireoffer or propose (whether publicly or otherwise) to effect, seek or announce any intention to effect or cause or participate in or in any way assist, knowingly facilitate or knowingly encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (x) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken beneficial ownership thereof) as a whole) result of which Subscriber would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) own more than the lesser of thirty-five percent (A35%) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser shares of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereofClass A common stock on a fully-diluted and as-converted basis, (iiy) propose to enter into any tender or seek to effectexchange offer, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization merger or other business combination involving Arsenal the Issuer or any assets of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, the Issuer constituting a material significant portion of the business or consolidated assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) makeIssuer, or in any way participate, directly or indirectly, in (z) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or consents to vote any voting securities of the Issuer or any of its affiliates; (b) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, Issuer or the execution of a written consent otherwise act in concert with any person in respect of any Equity Securities such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the Board or policies of Arsenal the Issuer or to obtain representation on the Board; (d) take any action which would or would reasonably be expected to require the Issuer to make a public announcement regarding any of its Subsidiaries the types of matters set forth in clause (a) above; or become (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; it being understood that nothing in this Section 7 shall (I) restrict or prohibit the any representative of Subscriber on the Board from taking any action, or refraining from taking any action in connection with his or her role as a “participant” member of the Board or (II) restrict Subscriber’s acquisition of the Shares in a “solicitation” accordance with the terms of proxies (as such terms are defined this Subscription Agreement. Further, nothing in Regulation 14A under the Exchange Act), in each case this Section 7 shall prohibit Subscriber from making any proposal or offer with respect to the election of directors foregoing directly to the Arsenal Board, or, for so long as Board on a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust confidential basis; provided that such proposal or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that offer would not reasonably be expected to require any public disclosure on the part regarding such proposal or offer. For purposes of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire7, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.“
Appears in 2 contracts
Samples: Subscription Agreement (Naspers LTD), Subscription Agreement (Churchill Capital Corp II)
Standstill. 11.1 (a) For a period so long as the Oaktree Shareholders and their Affiliates in the aggregate beneficially own at least 10% of five the Voting Securities of the Company, unless specifically invited in writing by the Board (5) years after the date hereof (the Standstill Periodwith Disinterested Director Approval), Manchester neither the Oaktree Shareholders nor any of their Affiliates shall not, and shall cause each of its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownmanner, directly or indirectly, (i) enter into or agree, offer or propose or publicly announce an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares intention to or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage participate in or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) assist any other Person or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose Group to enter into any tender or seek to effectexchange offer, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization acquisition transaction or other business combination or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving Arsenal the Company or any of its Subsidiaries or to purchase, directly all or indirectly, alone or in concert with others, a material portion substantially all of the business or assets of Arsenal or any of the Company and its Subsidiaries, (iii) for so long taken as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposalwhole, (ivii) make, or in any way participateparticipate in, directly or indirectly, in any “solicitation” of “proxies,” “consents” or “authorizations” (as such terms are defined used in Regulation 14A the proxy rules of the SEC promulgated under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consentvote, or seek to advise or influence any person Person other than the Oaktree Shareholders with respect to the voting of, or the execution of a written consent in respect of any Equity Voting Securities of Arsenal the Company or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case other than with respect to the election nomination of directors the Oaktree Designees and any other nominees proposed by the Nominating and Corporate Governance Committee), (iii) otherwise act, alone or in concert with third parties, to seek to control or influence the management, Board or policies of the Company or any of its Subsidiaries (other than with respect to the Arsenal Boardnomination of the Oaktree Designees and any other nominees proposed by the Nominating and Corporate Governance Committee), oror (iv) enter into any negotiations, for so long as a Manchester Director is serving on the Arsenal Board, arrangements or understandings with any third party with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effectactivities; provided, however, that in the event Manchester this Section 4.2(a) shall not prohibit or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of restrict (A) 17% of the then issued and outstanding Arsenal Shares or any action taken by an Oaktree Designee as Director in such capacity, (B) (1) if the Emerald Closing does occur (but exercise by any Oaktree Shareholder of its rights and obligations expressly provided for in this Agreement, including its voting rights with regard to its Voting Securities of the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage Company or (2C) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionmatters set forth on Schedule IV hereof.
Appears in 2 contracts
Samples: Shareholders Agreement (Star Bulk Carriers Corp.), Shareholders Agreement (Oaktree Capital Management Lp)
Standstill. 11.1 For a period of five (5) years after the date hereof (the Standstill Period), Manchester Xxxxxx shall not, and shall cause each of its Subsidiaries other Person in the Xxxxxx Group not to, without the prior written approval of the Governance Committee, acting alone or as part of a group: (i) directly or indirectly, acquire, seek to acquire propose, or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect agree to such Transaction, the Manchester Group (taken as a whole) would beneficially ownacquire, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares by purchase or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with othersotherwise, any merger, consolidation, recapitalization, reorganization securities or direct or indirect rights to acquire any securities of Meritage (other business combination involving Arsenal than securities owned beneficially by any Person in the Xxxxxx Group) or any of its Subsidiaries subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a any material portion of the business or assets of Arsenal Meritage or any of its Subsidiariessubsidiaries or divisions, (iii) for so long provided however, that if Xxxxxx xxxxx shares that bring his beneficial ownership of Voting Securities below 5% of the outstanding Voting Securities of Meritage, Xxxxxx or any Person in the Xxxxxx Group may reacquire Voting Securities from time to time provided that as a Manchester Director is serving on result of such acquisitions the Arsenal Board, initiate or propose any security holder proposal, aggregate beneficial ownership of Voting Securities by the Xxxxxx Group does not increase and thereafter exceed 4.99% of the outstanding Voting Securities of Meritage; (ivii) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person Person with respect to the voting ofof any securities of Meritage, or otherwise seek to control or influence the execution management of Meritage or its Board of Directors by means of statements or communications with any party other than Meritage’s Chief Executive Officer, Chief Financial Officer, or General Counsel or members of its Board of Directors; (iii) make any public announcement with respect to, or submit a written consent in respect proposal for, or offer of (with or without conditions) any Equity Securities of Arsenal extraordinary transaction involving Meritage or any of its Subsidiaries securities or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)assets, in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to or take any other matter, action that might reasonably be expected to force Meritage to make a public announcement regarding any of the matters of the type set forth in clauses (vi) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, through (viiii) of this Section 5(b); (iv) form, join, knowingly influence, 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 knowingly support in any fashion any shareholder proposal not supported by the Governance Committee or the Board of Directors of Meritage; (vi) call, or encourage the formation any other Person to call, any special or annual meeting of any 13D Group with respect to any Equity Securitiesshareholders of Meritage, (vii) except as specifically permitted by this Agreementcause Meritage’s directors, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Boardofficers, employees, agents (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Actincluding investment bankers), (x) publicly disclose any intention, plan partners or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not Affiliates to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, 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 financial markets; provided, that nothing in this clause (ix) shall preclude Xxxxxx 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 Xxxxxx in compliance with this Agreement, the Settlement Agreement and his continuing obligations under Sections 8 and 9 of the Employment Agreement. In addition, Xxxxxx agrees not to request Meritage to directly or indirectly amend or waive any provisions provision of this Section 11 (including this sentence5(b), other than through a direct non-public communication by the CEO of Manchester or to the CEO take any action designed to or non-executive Chairman of Arsenal (and to no other Person) that would not which could reasonably be expected to require Meritage to make a public announcement regarding any public disclosure on of the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing matters referred to in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction5(b); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 2 contracts
Samples: Cooperation Agreement (Meritage Homes CORP), Cooperation Agreement (Meritage Homes CORP)
Standstill. 11.1 For Each Selling Party agrees that for a period of five (5) two years after from the date hereof (the “Standstill Period”), Manchester shall notneither it nor any of its affiliates, alone or with others comprising a “group” (as defined under the Exchange Act), will in any manner (1) acquire, agree to acquire, or make any proposal (or request permission to make any proposal) to acquire any securities (or direct or indirect rights, warrants or options to acquire any securities) representing in the aggregate two percent (2%) or more of the voting power of Parent Common Stock (other than the Parent Common Stock to be issued as Merger Consideration or Interests Purchase Consideration, as the case may be, and Parent Common Stock that may be issued to individuals who are among the Selling Parties as employee compensation) or material property of Parent, unless such acquisition, agreement or making of a proposal shall cause each have been expressly first approved (or in the case of a proposal, expressly first invited) by the Parent Board, (2) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Parent or any of its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquireotherwise act, alone or in concert with others, whether by purchase, gift, business combination to solicit proxies from shareholders of Parent or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly influence or indirectly, alone control the management or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal policies of Parent or any of its Subsidiaries or to purchaseaffiliates (except, directly or indirectlyin the case of Xxxx Xxxxxxxx, alone or in concert with othershis role as director, a material portion Chairman of the business or assets Parent Board and employee of Arsenal Broadpoint Capital, Inc., and in the case of any other Selling Party, in such Selling Party’s role as an employee of Parent or any of its Subsidiaries, (iii) for ; it being understood that the foregoing shall not prohibit any such person from expressing his or her views on matters to be voted upon by stockholders so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or expressions do not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in constitute a “solicitation” necessitating a public filing under the applicable rules of proxies (as such terms are defined in Regulation 14A under the Exchange Act), or (3) assist, advise or encourage (including by knowingly providing or arranging financing for that purpose) any other person in each doing any of the foregoing. Each Selling Party hereby represents that neither it nor its affiliates beneficially own any shares of Parent Common Stock as of the date hereof or as of the Closing Date (other than the Parent Common Stock to be issued as Merger Consideration or Interests Purchase Consideration, as the case may be). Notwithstanding the foregoing, such Selling Party and its affiliates will not be subject to any of the restrictions set forth in this paragraph, and this paragraph shall terminate and be of no further force or effect, if Parent shall have entered into a definitive agreement providing for (i) any acquisition of a majority of the voting securities of Parent by any person or group (other than by MatlinPatterson FA Acquisition LLC and its affiliates (collectively, the “Permitted Holders”)), (ii) any acquisition or disposition of substantially all the consolidated assets of Parent by any person or group (other than the Permitted Holders) or (iii) any form of merger, business combination, acquisition, restructuring, recapitalization or similar transaction with respect to the election of directors Parent pursuant to the Arsenal Boardwhich, orimmediately following such transaction, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person (other than Manchester, (vithe Permitted Holders) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose direct or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation indirect shareholders of such sale, transfer or other disposition known to Manchester to be person shall beneficially own a beneficial owner of 5% or more majority of the outstanding Equity Securities (other than a beneficial owner who has filed voting power of Parent or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then surviving parent entity in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactiontransaction.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Broadpoint Securities Group, Inc.), Agreement and Plan of Merger (Gleacher & Company, Inc.)
Standstill. 11.1 For a (a) Except, in the case of clauses (i)(A), (i)(B) and (i)(C), as expressly contemplated by Article 9 of this Agreement, during the period of five (5) years after beginning on the date hereof (and ending on the Standstill Period)date on which a Parent’s Parent Aggregate Percentage Interest goes below the Lower Threshold, Manchester such Parent shall not, and shall cause each of its Subsidiaries other Parent Entities not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownmanner, directly or indirectly: (i) effect or seek, an aggregate number of Arsenal Shares representing offer or propose (as a percentagewhether publicly or otherwise) more than the lesser of to effect, or participate in, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) 17% any acquisition of any securities (or beneficial ownership thereof or economic interests therein), or rights or options to acquire any securities (or beneficial ownership thereof or economic interests therein), of the then issued and outstanding Arsenal Shares other Parent, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of such other Parent, (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur)any tender offer or exchange offer, 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization consolidation or other business combination involving Arsenal the other Parent or any of its Subsidiaries, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of the other Parent, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Parent or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iiiD) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Parent or any of its Subsidiaries, including soliciting consents or taking other action with respect to the calling of a special meeting of the stockholders of the other Parent or any of its Subsidiaries; (ii) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting ofother Parent; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)management, in each case with respect to the election board of directors or policies of the other Parent or to the Arsenal Board, or, for so long as a Manchester Director is serving obtain representation on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation board of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member directors of the Arsenal Board other than for cause Parent; (iv) disclose or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to direct any Person or 13D Group who is prior to the consummation of such saledisclose, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing foregoing; (v) advise, assist or (xi) publicly disclose a willingness encourage or desire direct any Person to have advise, assist or encourage any other Person engage in, Persons in connection with any of the transactions foregoing; or actions (vi) request a waiver or amendment of any of the foregoing clauses (i) through (v). Notwithstanding the foregoing, a Parent’s chief executive officer may make a non-public, confidential, oral, non-binding proposal regarding a transaction of the type described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 clauses (including this sentencei)(A), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) or (C) of the preceding sentence to the other Parent’s chief executive officer, provided that the Parent providing such proposal (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above make such proposal for the Emerald Closing Percentage or purpose of causing the receiving Parent to make public disclosure of such proposal and (2) immediately withdraws such proposal and does not further pursue such proposal or any proposal that is substantially similar to such proposal if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, other Parent’s board of directors has been apprised of such proposal and such Parent is not interested in the case of each of clauses (A) and (B), to exploring any Excepted Transactionsuch transaction.
Appears in 1 contract
Standstill. 11.1 For a period As of five (5) years after the date hereof, you hereby represent and warrant to the Company that neither you nor any of your Representatives acting on your behalf or affiliates owns any securities of the Company. You agree that beginning on the date hereof and ending on the earliest of (x) one year from the Standstill Period)date of this letter agreement, Manchester shall not, and shall cause each of its Subsidiaries not to, (y) the time at which the Company enters into a definitive agreement with respect to (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownacquisition, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of fifty percent (A50%) 17% of the then issued Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) or more than fifty percent (50%)of the assets of the Company and outstanding Arsenal Shares its subsidiaries on a consolidated basis or (Bii) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction (1) if provided that, in the Emerald Closing does occur case of any transaction covered by this clause (but the Contingent Repurchase does not occurii), 2% above immediately following such transaction, any person (or the Emerald Closing Percentage direct or indirect shareholders of such person) or group will beneficially own more than fifty percent (250%) if of the Contingent Repurchase occursCompany’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) of the Company or the surviving parent entity in such transaction), 2% above the Contingent Repurchase Closing Percentage and (the lesser of z) a person or group (AI) acquires (whether via tender offer, exchange offer or otherwise) or (BII) is hereinafter referred has commenced a tender offer or exchange offer under Rule 14(d) of the 1934 Act that, if completed in accordance with its terms, would result in the acquisition of, more than fifty percent (50%) of the Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to as vote in an election of directors) (the Maximum Arsenal Percentage“Standstill Period”), unless specifically invited in each case unless such Transaction is approved writing by the Audit Committee Board of Directors of the Arsenal Company (or by a Representative of the Company on behalf of the Board prior of Directors), neither you nor any of your affiliates who receive Evaluation Material and are acting on your behalf or IAC/InterActiveCorp October 14, 2019 on behalf of other persons acting in concert with you will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any material assets, indebtedness or businesses of the consummation thereofCompany or any of its subsidiaries, (ii) propose to enter into any tender or seek to effectexchange offer, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization merger or other business combination involving Arsenal the Company, any of the subsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the consolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries subsidiaries, or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its affiliates; (b) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act0000 Xxx) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, Company or the execution of a written consent otherwise act in concert with any person in respect of any Equity Securities such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Arsenal Directors or policies of the Company or to obtain representation on the Board of Directors of the Company; (d) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party (other than your Representatives) with respect to any of the foregoing; provided, that the foregoing obligations shall not apply to any acquisition, either directly or indirectly, of securities of a party or any of a party’s subsidiaries by any employee benefit or similar plan of the other party or such other party’s Representatives that does not have knowledge of, or access to, any Evaluation Material or Discussion Information (so long as such acquisition was not directed by a party or any of its Subsidiaries Representatives that have knowledge of, or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal access to, any Evaluation Material or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange ActDiscussion Information), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester You also agrees not to, and to cause each of its Subsidiaries agree during the Standstill Period not to, to request Arsenal (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 paragraph (including this sentence). Notwithstanding the foregoing, nothing in this paragraph 7 shall, directly or indirectly, prevent or otherwise limit you from initiating or continuing any confidential discussions, requests or communications (including any confidential request to amend or waive any provisions provision of this Section 11 (including this sentence), other than through a direct non-public communication by paragraph 7) with the CEO Company or its board of Manchester directors or at any time making any confidential offer or proposal to the CEO Company or non-executive Chairman its board of Arsenal (and directors relating to no other Person) that any potential transaction, in each case, in such a manner as would not reasonably be expected to require any the public disclosure on thereof by the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester Company or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted TransactionRepresentatives.
Appears in 1 contract
Samples: Iac/Interactivecorp
Standstill. 11.1 For Vxxxxx agrees that, for a period of five three (53) years after from the date hereof Effective date, unless specifically requested by the Company in writing, neither Vxxxxx nor any of his affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the Standstill Period"1934 Act")) or agents will in any manner, Manchester shall notdirectly or indirectly, and shall (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause each of its Subsidiaries not toor participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) directly any acquisition of any securities (or indirectlybeneficial ownership thereof) or assets of the Company; (ii) any tender or exchange offer, acquiremerger or other business combination involving the Company; (iii) any recapitalization, seek restructuring, liquidation, dissolution or other extraordinary transaction with respect to acquire the Company; or make an offer (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) to acquirevote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined in the 1000 Xxx) or otherwise act, alone or in concert with others, whether by to seek to control or influence the management, Board of Directors or policies of the Company; (c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in subsection (a) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Vxxxxx also agrees during such period not to request that the Company, directly or indirectly, amend or waive any provision of this subsection (including this sentence). The provisions of clause (a)(i) of this Section 16 shall not prohibit Vxxxxx from acquiring securities of the Company for investment purposes only, provided that Vxxxxx shall be prohibited from purchasing securities of the Company if, immediately following such purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) Vxxxxx would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of five percent (A5%) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner class of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionsecurities.
Appears in 1 contract
Samples: Separation Agreement (Unique Casual Restaurants Inc)
Standstill. 11.1 For a (a) Except, in the case of clauses (i)(A), (i)(B) and (i)(C), as expressly contemplated by Article 9 of this Agreement, during the period of five (5) years after beginning on the date hereof (and ending on the Standstill Period)date on which a Parent’s Parent Aggregate Percentage Interest goes below the Lower Threshold, Manchester such Parent shall not, and shall cause each of its Subsidiaries other Parent Entities not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownmanner, directly or indirectly: (i) effect or seek, an aggregate number of Arsenal Shares representing offer or propose (as a percentagewhether publicly or otherwise) more than the lesser of to effect, or participate in, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) 17% any acquisition of any securities (or beneficial ownership thereof or economic interests therein), or rights or options to acquire any securities (or beneficial ownership thereof or economic interests therein), of the then issued and outstanding Arsenal Shares other Parent, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of such other Parent, (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur)any tender offer or exchange offer, 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization consolidation or other business combination involving Arsenal the other Parent or any of its Subsidiaries, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of the other Parent, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Parent or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iiiD) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Parent or any of its Subsidiaries, including soliciting consents or taking other action with respect to the calling of a special meeting of the stockholders of the other Parent or any of its Subsidiaries; (ii) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting ofother Parent; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)management, in each case with respect to the election board of directors or policies of the other Parent or to the Arsenal Board, or, for so long as a Manchester Director is serving obtain representation on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation board of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member directors of the Arsenal Board other than for cause Parent; (iv) disclose or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to direct any Person or 13D Group who is prior to the consummation of such saledisclose, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing foregoing; (v) advise, assist or (xi) publicly disclose a willingness encourage or desire direct any Person to have advise, assist or encourage any other Person engage in, Persons in connection with any of the transactions foregoing; or actions (vi) request a waiver or amendment of any of the foregoing clauses (i) through (v). Notwithstanding the foregoing, a Parent’s chief executive officer may make a non-public, confidential, oral, non-binding proposal regarding a transaction of the type described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 clauses (including this sentencei)(A), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) or (C) of the preceding sentence to the other Parent’s chief executive officer, provided that the Parent providing such proposal (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above make such proposal for the Emerald Closing Percentage or purpose of causing the receiving Parent to make public disclosure of such proposal and (2) immediately withdraws such proposal and does not further pursue such proposal or any proposal that is substantially similar to such proposal if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, other Parent’s board of directors has been apprised of such proposal and such Parent is not interested in the case of each of clauses (A) and (B), to exploring any Excepted Transaction.such transaction. 83
Appears in 1 contract
Samples: Limited Liability Company Agreement (McGraw-Hill Companies Inc)
Standstill. 11.1 For a period of five (5a) years after From the date hereof through the second anniversary of the PIPE Closing Date (the “Standstill Period”), Manchester shall not, and shall cause each Purchaser hereby agrees that neither such Purchaser nor any of its Subsidiaries not toAffiliates will, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number without the prior written consent of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownCompany, directly or indirectly: (i) effect, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of offer or publicly propose to effect, or cause or participate in or in any way knowingly advise, assist or encourage any other person to effect, offer or publicly propose to effect or participate in, (A) 17% any acquisition of shares of Common Stock or of any rights, warrants or options to acquire, or securities convertible into or exchangeable or exercisable for, any shares of Common Stock (including derivative securities representing the then issued and outstanding Arsenal Shares right to vote or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser economic benefit of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentageany shares of Common Stock), in each case unless such Transaction is approved case, that would result in the Purchasers and their Affiliates jointly holding more than the total number of shares of Common Stock (or beneficial ownership thereof) acquired by the Audit Committee Purchasers in the Share Sale (including any paid as part of the Arsenal Board prior Commitment Fee), plus 5% of the total number of shares of Common Stock (or beneficial ownership thereof) pro forma for the Rights Offering and the Share Sale, in each case, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the consummation thereofCommon Stock that occur after the date hereof; (B) any tender or exchange offer, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization merger or other business combination involving Arsenal the Company or any of its Subsidiaries subsidiaries; (C) any liquidation or dissolution with respect to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal Company or any of its Subsidiaries, subsidiaries; or (iiiD) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or consents to vote any voting securities of the Company; (ii) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any securities of the Company (other matterthan with each other and with their Affiliates); (iii) otherwise act, alone or in concert with others, to seek to control the Board of Directors or the management or policies of the Company; (iv) take any action that would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or (v) deposit enter into any Equity Securities into a voting trust discussions or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together arrangements with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group third party with respect to any Equity Securitiesof the foregoing. Following the expiration of the Standstill Period, (vii) except as specifically permitted by this Agreement, seek election the foregoing restrictions shall terminate and cease to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal be of any member of the Arsenal Board other than for cause further force or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 1 contract
Standstill. 11.1 For Xx. Xxxxxxx agrees that, for a period of five (5) three years after from the date hereof (the Standstill Period)of this Agreement, Manchester shall not, and shall cause each of its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved shall have been specifically invited in writing by the Audit Committee of the Arsenal Board prior to the consummation thereofTrex, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or neither Xx. Xxxxxxx nor any of its Subsidiaries his “associates” or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxiesaffiliates” (as such terms are defined in Regulation 14A Rule 12b-2 under the Exchange Act0000 Xxx) will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, otherwise) to vote or act by written consenteffect, or seek cause or participate in or in any way assist (including acting as a financing source) any other person to advise effect or influence seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any person with respect to the voting ofacquisition of any securities of any kind or class, whether equity or debt, or the execution of a written consent in respect assets of any Equity Securities Trex Affiliate (or of Arsenal any successor to or person in control of Trex or having beneficial ownership thereof), except that this clause (i) shall not prohibit Xx. Xxxxxxx from acquiring any securities of its Subsidiaries Trex of any kind or become a class, whether equity or debt, of any Trex Affiliate (or of any successor to or person in control of Trex or having beneficial ownership thereof) provided that the beneficial ownership of such securities by (x) Xx. Xxxxxxx and (y) Xx. Xxxxxxx’x “participantassociates” in a and “solicitationaffiliates” of proxies (as such terms are defined in Regulation 14A Rule 12b-2 under the Exchange 0000 Xxx) does not in the aggregate equal or exceed ten percent (10%) of Trex’s outstanding securities and securities deemed outstanding pursuant to Rule 13d-3(d)(1) under the 1934 Act), in each case with respect to the election of directors to the Arsenal Board(ii) any tender or exchange offer, ormerger or other business combination involving any Trex Affiliate, for so long as a Manchester Director is serving on the Arsenal Board(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to any other matterTrex Affiliate, or (iv) any solicitation of proxies or consents to vote any voting securities of any Trex Affiliate, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vib) form, join, knowingly influence, join or in any way participate in a “group” (as defined in Rule 13d-5 under the 1934 Act), (c) take any action which might force any Trex Affiliate to make a public announcement regarding any of the types of matters set forth in clause (a) above, or knowingly encourage the formation of (d) enter into any 13D Group discussions or arrangements with any third party with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on of the Arsenal Board or seek the removal foregoing. Nothing herein will prohibit Xx. Xxxxxxx from selling any security of any member of the Arsenal Board other than for cause or Trex Affiliate held by him provided that such sale is permissible under applicable federal and state securities laws and in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactioncontractual restrictions.
Appears in 1 contract
Samples: Separation Agreement and Mutual Release (Trex Co Inc)
Standstill. 11.1 For a period of five (5) years after From the date hereof (until the Standstill Period)third anniversary of the date of this letter, Manchester shall not, and shall cause each of its Subsidiaries Xxxx agrees not to, (i) directly and to cause any person or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether entity controlled by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownhim not to, directly or indirectly, an aggregate number without the prior written consent of Arsenal Shares representing Parent: (as a percentagei) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares in any manner acquire, agree to acquire or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage make any proposal or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred offer to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effectacquire, directly or indirectly, alone by purchase, merger, joint venture, business combination, tender offer or in concert with othersotherwise, any mergersecurities or direct or indirect rights to acquire any securities of Parent, consolidationthe Company, recapitalization, reorganization any of their respective subsidiaries or any non-traded real estate investment trust or other business combination involving Arsenal pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries their respective subsidiaries or to purchaseaffiliates, directly or indirectly, alone or in concert with others, a material portion of the business or any assets of Arsenal Parent, the Company or their respective subsidiaries or any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries, their respective subsidiaries or affiliates; (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (ivii) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consentvote, or seek to advise or influence any person or entity with respect to the voting of, or the execution of a written consent in respect of any Equity Securities voting securities of Arsenal Parent, the Company, any of their respective subsidiaries or any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries their respective subsidiaries or become affiliates; (iii) enter into any arrangements, understandings or agreements (whether written or oral) with a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)third party, in each case with respect to the election of directors to the Arsenal Boardor advise, orassist or encourage, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement third party in connection with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions foregoing; or actions described in this Section 11.1. Manchester also agrees not to(iv) request that Parent amend, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal waive or its Representatives, directly or indirectly, to amend or waive terminate any provisions provision of this Section 11 (including this sentence), other than through paragraph if such request would require Parent to make a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% announcement of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effectforegoing; provided, however, that the restrictions contained in this Section 11 (i) shall cease to apply upon the event Manchester termination of the ARCP Merger Agreement in accordance with its terms (provided that such termination is not as a result of or otherwise related to any breach of this Section 11), and (ii) prior to the consummation of the ARCP Transaction shall not prohibit or otherwise restrict Xxxx’x exercise of his fiduciary duties under applicable law in his capacity as a director or officer of any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, the entities described in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionthis Section 11.
Appears in 1 contract
Samples: Separation Agreement and General Release of Claims (Cole Real Estate Investments, Inc.)
Standstill. 11.1 For a period of five (5a) years after Astellas agrees that from the Effective Date until the date hereof (that is the Standstill Period), Manchester shall not, and shall cause each earlier of its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or [*] after [*] of the [*] in concert with others, whether by purchase, gift, business combination or otherwise the [*] and (a Transactionii) [*] after the [*] of [*] in its entirety] (the “Standstill Period”), neither Astellas nor any number of Equity Securities such thatits Affiliates shall, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownin any manner, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of indirectly unless invited to do so by Medivation: (A) 17% make, effect, initiate, cause or participate in any acquisition of beneficial ownership of any voting securities of Medivation or any voting securities of any subsidiary or other Affiliate of Medivation, if the effect of such acquisition would be to entitle Astellas to cast directly or indirectly more than [*] of the then issued voting power in any election of directors of Medivation (for purposes of the [*] calculation under this Section 16.7(a) (A), all such securities, rights or options beneficially owned by Astellas (including through Affiliates or others) shall be treated on an as-exercised and outstanding Arsenal Shares as-converted basis, but such securities, rights or options beneficially owned by others shall not be so treated); (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur)make, 2% above the Emerald Closing Percentage effect, initiate, cause or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser participate in any acquisition of (A) all or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee substantially all of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or consolidated assets of Arsenal Medivation; (C) engage or any of its Subsidiaries, (iii) for so long as become a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, participant in any “solicitation” of (x) “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, (y) consents to vote any Medivation stock; (D) form, join or act by written consent, or seek to advise or influence any person participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the voting matters set forth in clauses (A), (B) or (C) of this Section 16.7(a); (E) agree or offer to take, or propose (publicly or otherwise) the taking of, or the execution of a written consent any action referred to in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies clauses (as such terms are defined in Regulation 14A under the Exchange ActA), in each case with respect to the election (B), (C) or (D) of directors to the Arsenal Boardthis Section 16.7(a); (F) knowingly assist, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to induce or encourage any other matterPerson to take any action of the type referred to in clauses (A), (vB), (C), (D) deposit or (E) of this Section 16.7(a); (G) enter into any Equity Securities into a voting trust or subject any such Equity Securities to any discussions, negotiations, arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, relating to any of the transactions foregoing; or actions described (H) request or propose that Medivation or any of Medivation’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence16.7(a), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 1 contract
Standstill. 11.1 For a period of five Purchaser hereby agrees that neither it nor its Affiliates will (5a) years after the date hereof (the Standstill Period), Manchester shall not, and shall cause each of its Subsidiaries not to, (i) directly or indirectlyexcept as expressly provided for herein, acquire, seek offer to acquire or make an offer agree to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any voting securities of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereofCompany, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (ivb) make, or in any way participate, directly or indirectly, in any “"solicitation” " of “"proxies” " to vote (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consentCommission), or seek to advise or influence any person or entity with respect to the voting of, or the execution of a written consent in respect of any Equity Securities voting securities of Arsenal the Company or vote in favor of any matter (including without limitation any acquisition transaction) that is opposed by the Board of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange ActDirectors), in each case with respect to the election of directors to the Arsenal Board(c) join a partnership, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative syndicate or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal togroup, or otherwise seek to have Arsenal amend its by-laws act in concert with any other person, for the purpose of acquiring, holding, voting or its certificate disposing of incorporationany voting securities of the Company, (ixd) other than in a public offering directly or a Rule 144 broker transactionindirectly, selloffer, sell or transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more voting securities of the Company at such time that a tender or exchange offer is pending or has been announced or which has otherwise been communicated to Purchaser for outstanding Equity Securities (other than a beneficial owner who has filed or voting securities of the Company that is eligible to file a Schedule 13G under opposed by the Exchange Act)Board of Directors, (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xie) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representativesotherwise participate, directly or indirectly, to amend or waive in any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by acquisition transaction involving the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and Company that is not thereafter voluntarily disclosed approved by Manchester except the Board. Notwithstanding the foregoing sentence, in the event that the Company issues any New Securities of the type described in Section 4.11(b)(iii)(B) or (F), Purchaser and Permitted Transferees may acquire additional equity securities of the Company to the extent that, as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time a result of such acquisition owns Arsenal Shares so long as acquisitions, the percentage of the shares of Common Stock held by such Arsenal Shares represent no more than 5% Purchaser or Permitted Transferees of the total assets number of shares of Common Stock outstanding after such acquisitions and the issuance of such Acquired Person at the time New Securities (determined on a fully diluted basis assuming full exercise and conversion of such acquisition (an Excepted Transaction); providedall outstanding options, that if Manchester completes an Excepted Transactionwarrants, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly rights and other securities which are convertible or indirectly, exchangeable for shares of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (xCommon Stock) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above exceed the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case percentage of each of clauses (A) and (B), to any Excepted Transaction.the
Appears in 1 contract
Samples: Stock Purchase Agreement (American Bank Note Holographics Inc)
Standstill. 11.1 For The Xxxx Parties agree that, for a period of five (5) 10 years after from the date hereof of this Agreement, unless such shall have been specifically invited in writing by XXXX or if such has been approved by the Board of Directors of XXXX at a duly and validly called and held meeting of (or a duly executed unanimous written consent action of) the Standstill PeriodBoard of Directors of XXXX or by the stockholders of XXXX at a duly and validly called and held meeting of the stockholders of XXXX (or, if such majority written consent action of the stockholders of XXXX comports with XXXX’x Bylaws, a duly executed majority written consent action of the stockholders of XXXX), Manchester the Xxxx Parties shall not, and shall cause each of its Subsidiaries not to, in any manner (directly or indirectly through Agents): (a) acquire any XXXX stock (other than (i) directly upon exercise of stock options before their termination pursuant to Section 4 of this Agreement, or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effectupon a stock split, directly or indirectly, alone or in concert with others, any merger, consolidationstock dividend, recapitalization, reorganization or distribution in which they receive XXXX stock pro rata with all other holders of XXXX common stock), (b) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of XXXX or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving Arsenal XXXX or any of its Subsidiaries subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal XXXX or any of its Subsidiariessubsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of XXXX; (c) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Securities Exchange ActAct of 1934, as amended) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to XXXX; (d) otherwise act, alone or in concert with others, to seek to control or influence the voting ofmanagement, Board of Directors or the execution policies of a written consent in respect of XXXX; or (e) enter into any Equity Securities of Arsenal or arrangements with any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, third party with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionforegoing.
Appears in 1 contract
Samples: Master Dispute Resolution Agreement (Therapeutic Solutions International, Inc.)
Standstill. 11.1 For a period (a) Until the expiration of five six (56) years months after the date hereof Termination Date (such period, the “Standstill Period”), Manchester shall notthe Stockholder agrees that without the prior written consent of the GEE Board, and shall cause each none of the Stockholder or its Subsidiaries not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or Affiliates will in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownmanner, directly or indirectly, (i) by purchase or otherwise, acquire, or propose or agree to acquire, ownership (of record or beneficially) of any securities issued by GEE or any direct or indirect rights (including, without limitation, any convertible, derivative or synthetic securities) or options to acquire (or otherwise act in concert with any person which so acquires, offers to acquire or agrees to acquire) such ownership (other than solely from an aggregate number of Arsenal Shares representing (action by GEE such as a percentage) more than stock split, dividend or recapitalization; any rights granted to all stockholders of GEE, or any GEE securities that may be issued to the lesser of (A) 17% Stockholder as part of the then issued and outstanding Arsenal Shares Deferred Consideration Amount under the Purchase Agreement; or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved connection with Board service by the Audit Committee of the Arsenal Board prior to the consummation thereof, Nominee); (ii) propose submit any proposal for, or otherwise offer to enter into or seek to effectinto, directly or indirectly, alone or in concert a transaction with others, any GEE involving the acquisition (by merger, consolidationtender offer, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly statutory share exchange or indirectlyotherwise) of ownership (including, alone or in concert with othersbut not limited to, a material portion beneficial ownership) of the business or assets of Arsenal or any of its Subsidiaries, securities issued by GEE; (iii) for so long acquire or agree to acquire or effect control of GEE or directly or indirectly form, join, participate or encourage the formation of any group (other than with its Affiliates) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as a Manchester Director is serving on amended (the Arsenal Board, initiate “Exchange Act”) with respect to any voting securities of GEE or propose any security holder proposal, in order to acquire or affect control of GEE; (iv) make, or in any way participate, directly or indirectly, indirectly in any “solicitation” of “proxies” proxies to vote (as such terms are defined used in Regulation 14A under the rules of the Securities Exchange ActCommission) whether or not such become a participant in any proxy solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting ofof any securities issued by GEE; or (v) initiate, propose or solicit votes for any stockholder proposal or induce or attempt to induce any other person to initiate any stockholder proposal (other than any stockholder proposals recommended by the execution GEE Board); (vi) call or seek to have called any meeting of a the stockholders of GEE or execute any written consent in respect lieu of a meeting of holders of any Equity Securities securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, GEE; (vii) except as specifically permitted by this Agreementother than the Nominee, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal GEE Board or seek the removal of any member of the Arsenal Board other than for cause GEE Board, in any case alone or in accordance concert with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, others; (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representativesotherwise, directly or indirectly, alone or in concert with others, seek to amend control the management, Board or waive any provisions policies of this Section 11 GEE; or (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Personix) that would not reasonably be expected to require make any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or announcement with respect to any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionforegoing.
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Samples: Interest Purchase Agreement (Global Eagle Entertainment Inc.)
Standstill. 11.1 For a period of five (5) years From and after the date hereof of this Agreement until the third (3rd) anniversary of the Closing Date (the “Standstill Period”), Manchester each Stockholder agrees that it shall not, and shall cause each of its Subsidiaries Affiliates not to, except within the terms of a specific written consent from Parent, (i) propose or disclose an intent to propose, or enter into or agree to enter into, singly or with any other Person or directly or indirectly, acquire, seek or encourage others to acquire propose or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction)enter into, any number Acquisition Transaction or any other form of Equity Securities such thatrestructuring, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidationtender offer, recapitalization, reorganization recapitalization or other business combination involving Arsenal or any of its Subsidiaries or similar transaction with respect to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal Parent or any of its Subsidiaries, (ii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or Beneficial Ownership of any securities of Parent or any of its Subsidiaries, if, as a result thereof, such Stockholder, together with its Affiliates and any members of a Group in which such Stockholder is a member, would, in the aggregate, Beneficially Own shares of Parent Common Stock representing more than 10% of the total then outstanding shares of Parent Common Stock; provided, however, that for purposes of this Section 4, the Stockholders shall not be deemed a Group based solely upon being parties to this Agreement and performing their obligations hereunder, (iii) for so long as make, encourage or in any way participate in, any solicitation of proxies with respect to any voting securities of Parent or any of its Subsidiaries (including by the execution of action by written consent), encourage or become a Manchester Director is serving on participant in any election contest with respect to Parent or any of its Subsidiaries, seek to encourage or influence any Person with respect to any such voting securities or demand a copy of the Arsenal Board, initiate list of the stockholders or propose other books and records of Parent or any security holder proposalof its Subsidiaries, (iv) make, participate in or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under encourage the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect formation of any Equity Securities partnership, syndicate or other group which owns or seeks or offers to acquire Beneficial Ownership of Arsenal any such voting securities or which seeks to affect control of Parent or any of its Subsidiaries or become a “participant” in a “solicitation” has the purpose of proxies (as such terms are defined in Regulation 14A under the Exchange Act)circumventing any provision of this Agreement, in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, or (v) deposit otherwise act, alone or in concert with others (including by providing financing for another Person), to seek or to offer to control or influence, in any Equity Securities into a voting trust manner, the management, the Board or subject policies of Parent or any such Equity Securities of its Subsidiaries. For the avoidance of doubt, the restrictions on the acquisition of additional securities set forth in this Section 4.1 shall not (A) apply to any arrangement or agreement with respect participation by the Stockholder in issuances of securities pursuant to the voting thereof by granting or together with any person exercise of employee stock options or other than Manchesterstock incentives pursuant to Parent’s stock incentive plans, (viB) form, join, knowingly influence, participate in or knowingly encourage restrict the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal ability of any member of the Arsenal Parent Board other than for cause of Directors who is affiliated with any Stockholder from performing his or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long her duties as a Manchester Director is serving on director of Parent and acting in his or her capacity as a director of Parent, including without limitation, carrying out his or her fiduciary duties to the Arsenal Boardstockholders of Parent, initiate, propose or knowingly take any public action in support (C) apply to the exercise of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication Acquiror Warrants held by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted TransactionStockholder.
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Standstill. 11.1 For During the Term and for a period of five (5) years after following the date hereof termination of this Agreement, Licensor agrees that, and agrees to cause its Related Parties to agree that, without the prior approval of a majority of the Board of Directors of Company or any Subsequent Fund (the Standstill Period“Board”), Manchester shall notLicensor and any Related Party will not singly or as part of (i) any partnership, limited partnership or syndicate or (ii) any other group of persons or entities acquiring, holding, voting or disposing of any security which would be required under Section 13(d) of the Exchange Act (as defined below) and shall cause each the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person” within the meaning of its Subsidiaries not toSection 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act” and such group, a “13D Group”), (ia) directly or indirectly, acquire, seek to acquire or make an offer propose to acquire, alone or in concert with others, whether by purchase, gift, business combination publicly announce or otherwise disclose an intention to propose to acquire, or offer or agree to acquire, by purchase or otherwise, beneficial ownership of any securities of Company or any Subsequent Fund (a Transaction“Company Securities”), any number of Equity Securities such that, ; (b) deposit (either before or after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% date of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee execution of the Arsenal Board prior License Agreement) any Company Securities in a voting trust or subject any Company Securities to any similar arrangement or proxy with respect to the consummation voting thereof, ; (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (ivc) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies,” or become a “Participant” in a “solicitation” (as such terms are defined used in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to vote against any proposal or director nominee recommended to the voting of, shareholders of Company or the execution of a written consent in respect of any Equity Securities of Arsenal Subsequent Fund or any of its Subsidiaries or become their respective subsidiaries by at least a “participant” in a “solicitation” majority of proxies the Board; (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vid) form, join, knowingly influence, join or in any way participate in or knowingly encourage the formation of any a 13D Group with respect to any Equity Company Securities; (e) commence (including by means of proposing or publicly announcing or otherwise disclosing an intention to propose, (vii) except as specifically permitted by this Agreementsolicit, offer, seek election to effect or negotiate) a merger, acquisition or other business combination transaction relating to Company or any Subsequent Fund; (f) initiate a “proposal,” as such term is used in Rule 14a-8 under the Exchange Act, “propose,” or otherwise solicit the approval of, one or more stockholders for a “proposal” or induce or attempt to induce any other person to initiate a “proposal” with respect to the Company or any Subsequent Fund (g) otherwise act, alone or in concert with others, to seek to place a representative control or other Affiliate or nominee on influence the Arsenal management, the Board or seek the removal policies of Company or any member of the Arsenal Board other than for cause Subsequent Fund; or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viiih) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public other action in support to seek or effect control of Company or any security holder proposal toSubsequent Fund, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent manner consistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions terms of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted TransactionAgreement.
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Standstill. 11.1 For a (a) During the period of five (5) years after beginning on the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with Article IX, each Parent (as such term is defined in the Standstill Period), Manchester Company Operating Agreement) shall not, and shall cause each of its Subsidiaries other Parent Entities (as such term is defined in the Company Operating Agreement) not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownmanner, directly or indirectly: (i) effect or seek, an aggregate number of Arsenal Shares representing offer or propose (as a percentagewhether publicly or otherwise) more than the lesser of to effect, or participate in, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) 17% any acquisition of any securities (or beneficial ownership thereof or economic interests therein), or rights or options to acquire any securities (or beneficial ownership thereof or economic interests therein), of the then issued and outstanding Arsenal Shares other Parent, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of such other Parent, (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur)any tender offer or exchange offer, 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization consolidation or other business combination involving Arsenal the other Parent or any of its Subsidiaries, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of the other Parent, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Parent or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iiiD) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Parent or any of its Subsidiaries, including soliciting consents or taking other action with respect to the calling of a special meeting of the stockholders of the other Parent or any of its Subsidiaries; (ii) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting ofother Parent; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)management, in each case with respect to the election board of directors or policies of the other Parent or to the Arsenal Board, or, for so long as a Manchester Director is serving obtain representation on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation board of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member directors of the Arsenal Board other than for cause Parent; (iv) disclose or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to direct any Person or 13D Group who is prior to the consummation of such saledisclose, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing foregoing; (v) advise, assist or (xi) publicly disclose a willingness encourage or desire direct any Person to have advise, assist or encourage any other Person engage in, Persons in connection with any of the transactions foregoing; or actions (vi) request a waiver or amendment of any of the foregoing clauses (i) through (v). Notwithstanding the foregoing, a Parent’s chief executive officer may make a non-public, confidential, oral, non-binding proposal regarding a transaction of the type described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 clauses (including this sentencei)(A), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) or (C) of the preceding sentence to the other Parent’s chief executive officer, provided that the Parent providing such proposal (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above make such proposal for the Emerald Closing Percentage or purpose of causing the receiving Parent to make public disclosure of such proposal and (2) immediately withdraws such proposal and does not further pursue such proposal or any proposal that is substantially similar to such proposal if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, other Parent’s board of directors has been apprised of such proposal and such Parent is not interested in the case of each of clauses (A) and (B), to exploring any Excepted Transaction.such transaction. 76
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Standstill. 11.1 For a period of five (5) years after JANA herebx xxrees that, from the date hereof until six (6) months from the date of this Agreement (the "Standstill Period"), Manchester shall not, and shall cause each neither it nor any of its Subsidiaries not toaffiliates or associates (as each such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transactionthe "Exchange Act"), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own), directly or indirectly, an aggregate number will (and neither it nor its affiliates or associates will assist or encourage others to), without the prior written consent of Arsenal Shares representing ARTESYN: (i) seek or propose to influence or control the management or policies of ARTESYN or obtain representation on ARTESYN's Board (except as a percentageset forth herein), or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities of ARTESYN, or make any public announcement with respect to ARTESYN (except as required by law) more than the lesser of (A) 17% or any of the then issued and outstanding Arsenal Shares foregoing or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred request permission to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee do any of the Arsenal Board prior to the consummation thereof, foregoing; (ii) propose to enter into submit a proposal for, or seek to effectoffer of (with or without conditions) any extraordinary transaction (including, directly or indirectlybut not limited to, alone or in concert with othersa tender offer, any exchange offer, merger, acquisition or consolidation, recapitalization, reorganization ) involving ARTESYN or other business combination involving Arsenal its securities or any of its Subsidiaries assets; or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the Arsenal Boardforegoing, initiate or propose any security holder proposalotherwise form, (iv) make, join or in any way participate, directly or indirectly, participate in any “solicitation” of “proxies” a "group" (as such terms are defined in Regulation 14A under Section 13(d)(3) of the Exchange Act) whether in connection with any of the foregoing, PROVIDED, HOWEVER, that JANA shall xxx be subject to the foregoing restrictions in the event that (A) ARTESYN calls a special meeting for the purpose of amending its articles of incorporation or bylaws, (B) ARTESYN's Board without the concurrence of the JANA Desigxxx (as defined below) authorizes any officer or other representative of ARTESYN to negotiate or pursue any material agreement containing a provision providing for any material consequence upon a change of control of the Company or a sale of a substantial portion of the Company's assets by sale, merger or otherwise, (C) the JANA Desigxxx (as defined below) shall not such solicitation is exempt have been appointed within twenty (20) calendar days from the date hereof other than as a result of action or inaction on the part of JANA, (D) XXXXSYN's Board without the concurrence of the JANA Desigxxx (as defined below) authorizes any officer or other representative of ARTESYN to begin a process designed to culminate in the issuance of any equity securities or securities convertible into equity securities (other than pursuant to the exercise of options, warrants or other rights to acquire equity securities heretofore granted, conversion of outstanding convertible securities and grants of options, restricted stock or other equity compensation under Rule 14a-2 existing agreements, plans or arrangements or under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person agreements with respect to the voting of, or the execution of a written consent in respect acquisition of any Equity Securities business or entity which is required to be approved by ARTESYN's stockholders) or (E) ARTESYN's Board without the concurrence of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies the JANA Desigxxx (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect below) authorizes any officer or other representative of ARTESYN to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to negotiate or pursue any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by acquisition or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation disposition of any 13D Group with respect to any Equity Securities, business or entity (vii) except as specifically permitted by this Agreement, seek election to provided that nothing contained herein shall prevent ARTESYN or seek to place a representative or other Affiliate or nominee on the Arsenal ARTESYN's Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, from taking any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentenceforegoing actions), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 1 contract
Samples: Standstill and Board Representation Agreement (Jana Partners LLC)
Standstill. 11.1 For a period of five (5) years after the date hereof (Each Purchaser hereby agrees that, until the Standstill Period)Termination Date, Manchester shall notunless specifically consented in writing by the Company to do so, and shall neither such Purchaser nor its Affiliates will, or will cause each or knowingly permit any of its Subsidiaries not or their directors, officers, partners, managers or employees to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownmanner, directly or indirectly: (i) effect or seek, an aggregate number of Arsenal Shares representing initiate, offer or propose (as a percentagewhether publicly or otherwise) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone cause or participate in or in concert with othersany way advise or, assist any other person to effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect or cause or participate in, any acquisition of any equity or equity-linked securities (or beneficial ownership thereof); any tender or exchange offer, merger, consolidation, recapitalization, reorganization consolidation or other business combination involving Arsenal the Company; any recapitalization, restructuring, liquidation, dissolution or any of its Subsidiaries other extraordinary transaction with respect to the Company; or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company, provided, however, that notwithstanding the foregoing, nothing in this clause (i) shall prevent or limit (a) the ability of any director of the Company that is affiliated with such Purchaser to acquire, exercise or dispose of any stock options or other equity securities of the Company received as compensation for serving as a director, or perform his or her duties as a director of the Company or (b) the Purchasers and their Affiliates (and their respective directors, officers, partners, managers or employees) from purchasing equity or equity-linked securities of the Company representing in the aggregate, together with the Underlying Securities, up to 20% of the outstanding Common Stock on a Fully-Diluted Basis in the aggregate for the Purchasers and their Affiliates; provided, further, that, notwithstanding anything to the contrary in this Section 6.8, at any time or from time to time following receipt of the Requisite Stockholder Approval, the Purchasers and their Affiliates will not be prohibited from exercising, converting or exchanging any securities of the Company then-held (including the Warrants and the warrants issued under that certain Warrant |US-DOCS\142687345.5|| Agreement dated as of March 8, 2022, between the Company and the other signatories thereto) for shares of Common Stock; (ii) form, join or in any way participate in a “group” (as defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member securities of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek Company that seeks to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, do any of the transactions actions prohibited by clause (i) above; (iii) otherwise act, alone or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectlyconcert with others, to amend seek to control or waive any provisions influence the management, Board of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO Directors or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% policies of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); providedCompany, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that notwithstanding the foregoing, nothing in this clause (iii) shall prevent or limit the ability of any director of the Company that is affiliated with such Purchaser to serve as a director, or perform his or her duties as a director of the Company or any related activities of such Purchaser’s officers, employees or representatives in support of such director; (iv) take any action which could reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in this Section 6.8 (other than actions taken by a director of the Company in the event Manchester performance of his or her duties as such); or (v) enter into any agreements, discussions or arrangements with any third party with respect to any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased foregoing (other than ordinary course discussions by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% director of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, Company in the case performance of each of clauses (A) and (Bhis or her duties as such), to any Excepted Transaction.
Appears in 1 contract
Samples: Cumulative Perpetual Preferred Stock and Warrant Purchase Agreement (Kennedy-Wilson Holdings, Inc.)
Standstill. 11.1 For a period of five (5) years after From the date hereof (until the Standstill Period)third anniversary of the date of this letter, Manchester shall not, and shall cause each of its Subsidiaries Cxxx agrees not to, (i) directly and to cause any person or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether entity controlled by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownhim not to, directly or indirectly, an aggregate number without the prior written consent of Arsenal Shares representing Parent: (as a percentagei) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares in any manner acquire, agree to acquire or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage make any proposal or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred offer to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effectacquire, directly or indirectly, alone by purchase, merger, joint venture, business combination, tender offer or in concert with othersotherwise, any mergersecurities or direct or indirect rights to acquire any securities of Parent, consolidationthe Company, recapitalization, reorganization any of their respective subsidiaries or any non-traded real estate investment trust or other business combination involving Arsenal pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries their respective subsidiaries or to purchaseaffiliates, directly or indirectly, alone or in concert with others, a material portion of the business or any assets of Arsenal Parent, the Company or their respective subsidiaries or any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries, their respective subsidiaries or affiliates; (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (ivii) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consentvote, or seek to advise or influence any person or entity with respect to the voting of, or the execution of a written consent in respect of any Equity Securities voting securities of Arsenal Parent, the Company, any of their respective subsidiaries or any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries their respective subsidiaries or become affiliates; (iii) enter into any arrangements, understandings or agreements (whether written or oral) with a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)third party, in each case with respect to the election of directors to the Arsenal Boardor advise, orassist or encourage, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement third party in connection with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions foregoing; or actions described in this Section 11.1. Manchester also agrees not to(iv) request that Parent amend, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal waive or its Representatives, directly or indirectly, to amend or waive terminate any provisions provision of this Section 11 (including this sentence), other than through paragraph if such request would require Parent to make a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% announcement of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effectforegoing; provided, however, that the restrictions contained in this Section 11 (i) shall cease to apply upon the event Manchester termination of the ARCP Merger Agreement in accordance with its terms (provided that such termination is not as a result of or otherwise related to any breach of this Section 11), and (ii) prior to the consummation of the ARCP Transaction shall not prohibit or otherwise restrict Cxxx’x exercise of his fiduciary duties under applicable law in his capacity as a director or officer of any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, the entities described in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionthis Section 11.
Appears in 1 contract
Samples: Separation Agreement (American Realty Capital Properties, Inc.)
Standstill. 11.1 For a period (a) Subject to Section 10.8(c), the Investor agrees that from and after the Initial Closing until the earliest of (i) the first day following the sixty-three (63) month anniversary of the Initial Closing Date, (ii) six (6) months after the first date on which the Investor and its Affiliates (other than any Brookfield Excluded Affiliate) own, in the aggregate, on an as-converted basis, five percent (5%) years after or less of the date hereof total number of Common Shares then outstanding and (iii) the Standstill Period)termination of this Agreement, Manchester the Investor shall not, and shall will cause each of its Subsidiaries Affiliates (other than any Brookfield Excluded Affiliate) not to, (i) directly or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing without the prior written consent of, or waiver by, the Company, effect or seek, offer or propose (as a percentagewhether publicly or otherwise) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone cause or participate in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries or to purchase, directly or indirectly, alone or in concert with others, a material portion of the business or assets of Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (iv) make, or in any way participateadvise, directly assist or indirectlyknowingly encourage any other Person to effect or seek, in offer or propose (whether publicly or otherwise) to effect or participate in: (1) any Acquisition Proposal; (2) any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consentany Common Shares, or seek to advise or influence any person Person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies Common Shares (as such terms are defined in Regulation 14A under the Exchange Act)other than, in each case case, in a manner that is not inconsistent with respect to the election of directors to the Arsenal Board, or, for so long as ’s recommendation in connection with a Manchester Director is serving on the Arsenal Board, with respect to any other matter, ); (v3) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to to, or seek to place a representative or other Affiliate or nominee on on, the Arsenal Board or seek the removal of any member of the Arsenal Board (other than with respect to the election or removal of a Redeemable Preferred Director); (4) call, or seek to call, a meeting of the holders of the Common Shares or initiate any stockholder proposal for cause action by the holders of the Common Shares; (5) form, join or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than way participate in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior with respect to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities Common Shares (other than a beneficial owner who has filed Group consisting solely of Affiliates of the Investor other than Brookfield Excluded Affiliates); (6) otherwise act, alone or is eligible in concert with others, to file a Schedule 13G under seek to control or influence the Exchange Act), management or the policies of the Company; (x7) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions foregoing activities; or actions described (8) arrange, or in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquireway provide, directly or indirectly, any financing for the purchase by any Person or Group of (an Acquired Personi) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% any Equity Securities of the total Company or Opco or (ii) Equity Securities or assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess any Subsidiary of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing Company (xother than Opco) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or and/or any of its Subsidiaries, at any time after an Excepted Transactionin each case, directly representing 25% or indirectly, sells, transfers or otherwise disposes more of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) consolidated assets of the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of Company and its Subsidiaries (other than financing for the purchase of assets then being offered for sale by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares Company or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occurits Subsidiaries or purchases permitted by Section 10.8(b), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction).
Appears in 1 contract
Samples: Registration Rights Agreement (American Realty Capital Hospitality Trust, Inc.)
Standstill. 11.1 For a period of five (5) years after From the date hereof (until the Standstill Period)third anniversary of the date of this letter, Manchester shall not, and shall cause each of its Subsidiaries Xxxxx agrees not to, (i) directly and to cause any person or indirectly, acquire, seek to acquire or make an offer to acquire, alone or in concert with others, whether entity controlled by purchase, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially ownhim not to, directly or indirectly, an aggregate number without the prior written consent of Arsenal Shares representing Parent: (as a percentagei) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares in any manner acquire, agree to acquire or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage make any proposal or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred offer to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effectacquire, directly or indirectly, alone by purchase, merger, joint venture, business combination, tender offer or in concert with othersotherwise, any mergersecurities or direct or indirect rights to acquire any securities of Parent, consolidationthe Company, recapitalization, reorganization any of their respective subsidiaries or any non-traded real estate investment trust or other business combination involving Arsenal pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries their respective subsidiaries or to purchaseaffiliates, directly or indirectly, alone or in concert with others, a material portion of the business or any assets of Arsenal Parent, the Company or their respective subsidiaries or any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries, their respective subsidiaries or affiliates; (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate or propose any security holder proposal, (ivii) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consentvote, or seek to advise or influence any person or entity with respect to the voting of, or the execution of a written consent in respect of any Equity Securities voting securities of Arsenal Parent, the Company, any of their respective subsidiaries or any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of its Subsidiaries their respective subsidiaries or become affiliates; (iii) enter into any arrangements, understandings or agreements (whether written or oral) with a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act)third party, in each case with respect to the election of directors to the Arsenal Boardor advise, orassist or encourage, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement third party in connection with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions foregoing; or actions described in this Section 11.1. Manchester also agrees not to(iv) request that Parent amend, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal waive or its Representatives, directly or indirectly, to amend or waive terminate any provisions provision of this Section 11 (including this sentence), other than through paragraph if such request would require Parent to make a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% announcement of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effectforegoing; provided, however, that the restrictions contained in this Section 11 (i) shall cease to apply upon the event Manchester termination of the ARCP Merger Agreement in accordance with its terms (provided that such termination is not as a result of or otherwise related to any breach of this Section 11), and (ii) prior to the consummation of the ARCP Transaction shall not prohibit or otherwise restrict Xxxxx’x exercise of his fiduciary duties under applicable law in his capacity as a director or officer of any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, the entities described in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionthis Section 11.
Appears in 1 contract
Samples: Separation Agreement and General Release of Claims (Cole Real Estate Investments, Inc.)
Standstill. 11.1 For a period Except as otherwise provided in this Agreement or the Certificate of five Designations, until the later of (5a) years one (1) year after the Closing and (b) the date hereof (the Standstill Period)Purchaser is no longer entitled, Manchester shall notor waives its right, and shall to designate one director to the Board of Directors pursuant to Section 4.1, without the prior written consent of the Company, the Purchaser will not at any time, nor will it cause each any of its Subsidiaries not Affiliates to, : (i) directly effect or indirectlyseek, acquireoffer or publicly propose to effect, seek or publicly announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition or series of acquisitions of any equity securities (or beneficial ownership thereof) or rights or options to acquire any equity securities (or make an offer to acquire, alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transactionbeneficial ownership thereof), or any number securities convertible into or exchangeable for any such equity securities (or beneficial ownership thereof) of Equity Securities the Company, such that, after giving effect to such Transactionacquisition(s), the Manchester Group (taken as a whole) Purchaser and its Affiliates would beneficially own, directly or indirectly, an aggregate number increase their beneficial ownership of Arsenal Shares representing (as a percentage) Common Stock by more than five percent (5%) in the lesser of aggregate within any twelve month period; provided, this clause (A) 17% shall not restrict (I) the conversion of the then issued and outstanding Arsenal Shares Purchased Notes or the shares of Series A Preferred Stock (or any dividends received thereunder) or the receipt of dividends upon shares of Series A Preferred Stock or (II) any exercise of the Purchaser’s rights to acquire New Securities pursuant to Article VI or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur)any tender or exchange offer, 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization merger or other business combination involving Arsenal the Company or any of its Subsidiaries or to purchase, directly assets of the Company or indirectly, alone or in concert with others, its Subsidiaries constituting a material significant portion of the business or consolidated assets of Arsenal the Company and its Subsidiaries; (ii) make, participate in or encourage any “solicitation” (as such term is used in the proxy rules of SEC) of proxies or consents with respect to the election or removal of directors or any of its Subsidiaries, other matter or proposal; (iii) for so long become a “participant” (as a Manchester Director such term is serving on used in the Arsenal Board, initiate proxy rules of the SEC) in any such solicitation of proxies or propose any security holder proposal, consents; (iv) makeseek to advise, encourage or in influence any way Person with respect to the voting or disposition of any of the securities of the Company; (v) initiate, encourage or participate, directly or indirectly, in any “solicitationvote no,” of “proxieswithhold” or similar campaign; (as such terms are defined in Regulation 14A under the Exchange Actvi) whether otherwise act to seek representation on or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise control or influence the management or policies of the Company or to obtain representation on the Board of Directors of the Company (beyond their right to do so based on their representation on the Board of Directors pursuant to Section 4.1); (vii) publicly submit any person with respect shareholder proposal to the voting of, Company; or (viii) publicly propose any change of control or other material transaction involving the execution of a written consent Company. Nothing in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, this Section 4.4 shall (v) deposit restrict or prohibit a Series A Director or Purchaser Nominee, as applicable, from taking any Equity Securities into action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary or appropriate in light of his or her fiduciary duties as a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal BoardDirectors, (viiiw) for so long as a Manchester Director is serving on restrict or prohibit the Arsenal Board, initiate, propose making or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior submission to the consummation Company and/or the Board of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose Directors any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication proposal by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) Purchaser Parties that would not reasonably be expected to require any public disclosure on result in the part Company being obligated to publicly disclose such proposal, (x) restrict or prohibit participation in rights offerings made by the Company to all holders of Arsenal Common Stock or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law Series A Preferred Stock, (y) restrict or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at prohibit the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If ManchesterPurchaser’s acquisition, directly disposition, sale or indirectlyTransfer of the Common Stock or Purchased Notes (or shares of Series A Preferred Stock issued upon exchange thereof (or Conversion Shares issued upon conversion thereof)) (including the accretion of dividends thereon and any dividends payable in any other security), in each case, in accordance with the terms of Arsenal Shares this Agreement and the Certificate of Designations or (z) limit or restrict any Transfer pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester Permitted Loan or any foreclosure thereunder or Transfer in lieu of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transactionforeclosure thereunder.
Appears in 1 contract
Standstill. 11.1 For a period Mutual hereby covenants and agrees that, on or before the fifth anniversary of five (5) years after the date hereof (the Standstill Period)hereof, Manchester shall it will not, and shall will cause each Mutual Affiliates to not, without the prior written consent of its Subsidiaries not toa majority of the members of the Company's Board of Directors, do any of the following except pursuant to Section 2 hereof: (ia) directly or indirectly, acquire, seek offer or agree to acquire any shares of Common Stock (or make an offer options or warrants to acquire, alone or in concert securities convertible into or exchangeable for, shares of Common Stock) if, as a result of such acquisition, Mutual (together with others, whether by purchase, gift, business combination or otherwise (any Mutual Affiliates) would Beneficially Own more than a Transaction), any number of Equity Securities such shares of Common Stock in excess of a number equal to forty percent (40%) of the outstanding shares of Common Stock plus forty percent (40%) of the shares of Common Stock issuable upon conversion of the Convertible Notes plus forty percent (40%) of the number of shares of Common Stock issuable upon conversation of the Preferred Stock; provided, however, that, after giving effect to for purposes of computing such Transactionamount, the Manchester Group 37,900 shares of Common Stock Beneficially Owned by Invista Capital Management, Inc. (taken "Invista") on December , 1997 shall be excluded from such calculation for as a wholelong as such shares are regarded as Beneficially Owned by Invista (and no longer) would beneficially ownand provided that no executive officer or director of Mutual or Principal or any employee of Mutual, directly or indirectlyPrincipal, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal or any of its Subsidiaries their affiliates other than officers, directors or to purchase, directly or indirectly, alone or employees of Invista charged with the responsibility thereof shall participate in concert with others, a material portion the voting of the business or assets of Arsenal or any of its Subsidiaries, (iii) such shares and provided further that for so long as a Manchester Director is serving on the Arsenal BoardConvertible Notes are outstanding, initiate or propose any security holder proposal, (iv) make, or in any way participate, directly or indirectlyMutual and the Mutual Affiliates, in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or aggregate, will not such solicitation is exempt under Rule 14a-2 under the Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting of, or the execution of a on written consent in respect any matter coming before shareholders at any shareholder meeting or shareholder action in excess of any Equity Securities forty percent (40%) of Arsenal the shares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding; (b) directly or any of its Subsidiaries indirectly commence or become a “participant” participate in a “solicitation” solicitation of proxies (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect either to oppose the election of directors any Person to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect Board of Directors or to any other matter, (v) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member Person from the Board of Directors, which Person has been nominated by the Nominating Committee of the Arsenal Board of Directors; (c) vote its shares of Common Stock for the election of any Person to the Board of Directors other than for cause or in accordance with the recommendation Persons nominated by the Nominating Committee of the Arsenal Nominating and Governance Committee Board of Directors; or the Arsenal Board, (viiid) for so long as directly or indirectly make or solicit or assist any third party to make a Manchester Director is serving on the Arsenal Board, initiate, propose tender or knowingly take exchange offer to purchase any shares of Common Stock or make any public action in support of any security holder proposal toannouncement concerning, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of submit any Equity Securities to any Person or 13D Group who is prior written proposal to the consummation Board of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more Directors of the outstanding Equity Securities (other than Company for a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act)merger, (x) publicly disclose any intentionshare exchange, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any acquisition of substantially all of the transactions assets or actions described in this Section 11.1similar transaction involving the Company. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 3 4 SECTION 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
Appears in 1 contract
Standstill. 11.1 For a period Cutrale-Safra, on behalf of five itself and their respective Parent Entities, agrees that until one (51) years after year from the date hereof (of this Agreement, except as otherwise permitted under this Agreement, neither it nor its Parent Entities will, without the Standstill Period), Manchester shall not, and shall cause each prior approval of its Subsidiaries not to, Xxxxxxxx (i) directly or indirectly, acquire, seek to acquire or make an offer any proposal to acquireacquire any securities, alone or in concert with othersany equity derivative or contract for differences relating to securities, whether by purchaseor property, gift, business combination or otherwise (a Transaction), any number of Equity Securities such that, after giving effect to such Transaction, the Manchester Group (taken as a whole) would beneficially own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereofXxxxxxxx, (ii) propose to enter into any merger or seek to effect, directly or indirectly, alone or in concert with others, any merger, consolidation, recapitalization, reorganization or other business combination involving Arsenal with or any takeover offer of its Subsidiaries Xxxxxxxx or to purchase, directly or indirectly, alone or in concert with others, purchase a material portion of the business or assets of Arsenal or any of its SubsidiariesXxxxxxxx, (iii) for so long as a Manchester Director is serving on the Arsenal Board, initiate make or propose any security holder proposal, (iv) make, or participate in any way participate, directly or indirectly, in any “solicitation” solicitation of “proxies” (as such terms are defined in Regulation 14A under the Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, proxies to vote or act by written consentvote, or seek to advise or influence any person with respect to the voting of, or the execution of a written consent in respect of any Equity Securities securities of Arsenal Xxxxxxxx, (iv) form, join or any of its Subsidiaries or become a “participant” participate in a “solicitationgroup” (within the meaning of proxies (Section 13(d)(3) of the Securities Exchange Act of 1934, as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, amended) with respect to any voting securities of Xxxxxxxx, other matterthan with their respective Parent Entities, (v) deposit any Equity Securities into a voting trust otherwise act, alone or subject any such Equity Securities in concert with others, or seek to any arrangement control or agreement with respect to influence the voting thereof by management, board of directors or together with any person the policies of Xxxxxxxx, other than Manchesterwith their respective Parent Entities and Representatives, (vi) formhave any discussions or enter into any arrangements, joinunderstandings or agreements (whether written or oral) with any other persons in connection with any of the foregoing, knowingly influence, participate in or knowingly encourage the formation of any 13D Group other than with respect to any Equity Securitiestheir respective Parent Entities and Representatives, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xiviii) publicly disclose take any action which might require Xxxxxxxx to make a willingness public announcement regarding the possibility of a business combination or desire merger or (ix) acquire, offer to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, by purchase or otherwise, any Person voting securities or direct or indirect rights to acquire any part of, or an interest in, the share capital of Xxxxxxxx. Except as provided above, Cutrale-Safra, on behalf of itself and their respective Parent Entities, also agrees during such period not to request Xxxxxxxx (an Acquired Personor its Representatives) that at to amend or waive any provision of this Agreement. Notwithstanding anything to the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); providedcontrary contained in this Agreement, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.that:
Appears in 1 contract
Samples: Confidentiality Agreement (Cavendish Acquisition Corp)
