Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement: (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions; (b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents; (c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any); (d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”); (e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company; (f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement); (g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”); (h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company; (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i)); (j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or (k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 5 contracts
Sources: Investor Agreement (SK Ecoplant Co., Ltd.), Investor Agreement (SK Ecoplant Co., Ltd.), Securities Purchase Agreement (SK Ecoplant Co., Ltd.)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 18 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 5 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. During the period (Each Stockholder agrees that, until such period, the “Standstill Term”) commencing as time that such Stockholder beneficially owns Voting Stock representing less than 5% of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the outstanding shares of Common Stock then issued and outstanding(on an as-converted basis), the Investor (including SK ecoplant and the SPV) and none of it or its Subsidiaries shall not Affiliates will, directly or indirectly, do any of the following, except as approved, invited following unless requested or waived approved in advance in writing by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares[Reserved.]
(b) acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire beneficial ownership any shares of Preferred Stock or Common Stock (including any derivative securities or contracts or instruments in any way related thereto) of the Company such that after such acquisition the Stockholder and its Affiliates or any direct or indirect parent of such Stockholder would beneficially own more than 49.99% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument (on an as-converted basis); provided that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing foregoing restriction in this Section 2.1(a3.2(b) shall prevent not apply to any acquisition (i) pursuant to Section 4.2 (Preemptive Rights) of this Agreement or prohibit any Stockholder’s exercise of its Right of First Refusal in connection with a Transfer that is permitted by Section 3.1 or (ii) that is the Investor from investing in a fund with respect to which result of operation of Section 10 (Anti-Dilution Adjustments) of the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock EquivalentsCertificate of Designations;
(c) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (iwithin the meaning of Rule 14a-1 under the Exchange Act) seek to have called vote any meeting of the stockholders Voting Stock of the Company or propose any matter its subsidiaries, or call or seek to be voted upon by the stockholders call a meeting of the Company, ’s stockholders or (ii) propose initiate any stockholder proposal for action by the Company’s stockholders or nominate for election to seek the removal of any director from the Board any person whose nomination has not been approved by a majority of the Board Company (excluding the Investor Designee, if anyother than pursuant to Article II of this Agreement);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by make any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)public announcement with respect to, or seek to advise submit a proposal for, or influence any Person, offer of (with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwithout conditions) any merger, consolidation, business combination, tender or exchange offer, purchase restructuring, recapitalization or other extraordinary transaction of the Company’s assets or businesses, purchase of any securities of involving the Company or any Derivativeof its subsidiaries or their securities or assets (except (i) any nonpublic proposal to the Board that would not require the Company, such Stockholder or any similar transaction involving the Company other Person to make any public announcement or other disclosure with respect thereto or (ii) any recapitalization, restructuring, liquidation public disclosure in any filings by the Stockholder or other extraordinary transaction its Affiliates with respect the SEC to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”extent required by applicable law or stock exchange rules);
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used defined in the rules Section 13(d)(3) of the SEC Exchange Act) in connection with respect to any Voting Stock of the Company or its subsidiaries, including with any securities of the Company;
(i) request or propose to the Board or the Company (other Stockholder or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, Affiliates; provided that taking any amendment or waiver of any provision action as required by this Agreement shall not constitute a violation of this Section 2.1 (including 3.2(e); provided further that the foregoing restriction in this clause (i))Section 3.2(e) shall not apply to any action taken in connection with the previously announced merger of Charter Communications, Inc. and the Liberty Broadband Stockholder and shall not apply upon completion of such merger;
(jf) make any public announcement regarding, or take any action that could would reasonably be expected to cause or require of the Company to make a public announcement regarding, a potential Business Combination regarding any actions prohibited by this Section 3.2;
(g) contest the validity or any enforceability of the matters set forth in clauses (a) through (i) abovethis Section 3.2; or
(kh) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements with (whether written or oral) with, or advise, assist or encourage, any Person relating other persons to do any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 3.2 shall preventlimit, restrictrestrict or prohibit (i) any confidential, encumbernon-public discussions with or communications or proposals to management or the Board by the Stockholder, its Affiliates or limit representatives related to any of the foregoing, (ii) a Stockholder’s ability to vote, Transfer, convert, exercise its rights under Section 4.2 (Preemptive Rights) or Section 3.3 (Right of First Refusal) or otherwise exercise rights with respect to its Common Stock or Preferred Stock in any manner: accordance with the terms and conditions of this Agreement and the Certificate of Designations or (Aiii) the Investor ability of any Director to vote or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its otherwise exercise his or her duties or otherwise act in his or her capacity as a member of the Board; provided, further, that, for the avoidance of doubt, any shares of Preferred Stock and Common Stock held by a Stockholder or its Permitted Transferee shall be subject to the terms and restrictions set forth in this Agreement and the Certificate of Designations, including the limitations on voting set forth in Section 12 of the Certificate of Designations. Notwithstanding the foregoing, the restrictions set forth in this Section 3.2 shall not apply if any of the following occurs (provided, that, in the event any matter described in clauses (a) or (Cb) of this paragraph has occurred and resulted in the restrictions imposed under this Section 3.2 ceasing to apply to a Stockholder, then, in the event the transaction related to such matter has not occurred within twelve (12) months of the date on which the Stockholder was released from such restrictions, then so long as such transaction is not being actively pursued at such time, the restrictions set forth in this Section 3.2 shall thereafter resume and continue to apply in accordance with their terms (provided that such restrictions shall not resume and continue to apply if such Stockholder has publicly taken any tangible steps with respect to any action or matter that would be prohibited by this Section 3.2 and such Stockholder is at that time continuing to pursue such action or matter, in which case such restrictions shall resume and continue to apply following such time as such Stockholder has ceased to pursue such action or matter)): (a) in the event the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (including, but not limited to, beneficial ownership) Voting Stock of the resulting corporation having 50% or less of the votes that may be cast generally in an election of directors if all outstanding Voting Stock were present and voted at a meeting held for such purpose; or (b) in the event that a tender offer or exchange offer for at least 50.1% of the Capital Stock of the Company is commenced by a third person (and not involving any breach, by a Stockholder, of this Section 3.2), which tender offer or exchange offer, if consummated, would result in a Change of Control, and either (1) the Investor directors (excluding any Directors) recommend that the stockholders of the Company tender their shares in response to such offer or do not recommend against the tender offer or exchange offer within ten (10) business days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (2) the directors (excluding any Directors) later publicly recommend that the stockholders of the Company tender their shares in response to such offer. Notwithstanding the foregoing, solely with respect to the Liberty Broadband Stockholder, references in this Section 3.2 to Affiliates shall mean Affiliates acting at the direction of or in concert with the Liberty Broadband Stockholder or any of its Affiliates from exercising their Permitted Transferees and any of the foregoing Persons’ respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSubsidiaries.
Appears in 4 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director Prior to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingTermination Date, except as approvedotherwise provided in this Agreement, invited or waived by without the Company or prior written approval of the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Investor shall not, and purchases of Preemptive Right Sharesshall cause its respective controlled Affiliates, not to, directly or indirectly, in whole or in part (in each case, except as permitted by this Agreement):
(a) acquire, offer or seek to acquire, agree to acquire beneficial ownership or acquire rights to acquire (except by way of Common Stock and/or Common Stock Equivalents and/or stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis or as a result of forming a group not prohibited by Section 3(c) below), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company (other than through a “Derivative”)broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, exceptor other beneficial ownership interest in, nothing 10% or more than of the then-outstanding shares of the Common Stock in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsaggregate;
(b) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a tenderproponent of any stockholder proposal for consideration at, exchange or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other public offer business brought before, any Stockholder Meeting; (v) call or seek to acquire Common Stock and/or Common Stock Equivalentscall, or request to call of, alone or in concert with others, any Stockholder Meeting, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as amended and as may be further amended from time to time, the “Certificate of Incorporation”) or the Amended and Restated Bylaws (as amended and as may be further amended from time to time, the “Bylaws”), including any “town hall meeting”; or (vi) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) directly form, join or indirectly, (i) seek in any way participate in any group or agreement of any kind with respect to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, including in connection with any election or (ii) propose or nominate for election removal contest with respect to the Board Company’s directors or any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)stockholder proposal or other business brought before any Stockholder Meeting;
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting thereof;
(e) seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Certificate of Incorporation or Bylaws;
(f) make any public proposal with respect to: (i) any change in the number or term of directors serving on the Board or the filling of any proxy vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other than change in the Company’s management, governance, corporate structure, affairs or policies, (iv) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (v) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to this Agreement)Section 12(g)(4) of the Exchange Act;
(g) initiate, cause, effect (or seek, offer or propose (ito effect) any mergerExtraordinary Transaction or make, consolidationdirectly or indirectly, business combinationany proposal, tender either alone or exchange offerin concert with others, purchase of the Company’s assets or businesses, purchase of any securities of to the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in reasonably be expected to require a Change of Control, is referred to as a “Business Combination”)public announcement or disclosure regarding any such matter;
(h) act in concert enter into any agreements with any Third Party with respect to any of the foregoing, or advise, assist or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyforegoing;
(i) publicly make or in any way advance publicly any request or propose to proposal that the Company or the Board amend, modify or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));Agreement; or
(j) make any public announcement regarding, or take any action that could require challenging the validity or enforceability of this Section 3 or this Agreement unless the Company to make a public announcement regarding, a potential Business Combination is challenging the validity or any enforceability of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovethis Agreement; provided, however, that nothing contained (i) the restrictions in this Section 2.1 3 shall not prevent, restrict, encumber, prohibit or limit in any manner: restrict Investor or its Representatives from making (A) any factual statement as required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over the Investor or any party from whom information is sought (so long as such request did not arise as a result of its Affiliates from making confidentialaction by Investor), nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) any private or confidential communication to or with the Investor Designee from performing its duties as a member Board or any officer or director of the Board; Company or legal counsel that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties or (C) any private or confidential communication regarding the Company to or with Investor’s or its controlled Affiliates’ investors or potential investors that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties and (ii) the restrictions in this Section 3 shall not restrict Investor or any of its Affiliates Representatives from exercising their respective rightstendering shares, performing their respective obligations receiving payment for shares or otherwise consummating participating in any such transaction on the transactions contemplated same basis as the other stockholders of the Company or from participating in any such transaction that has been approved by the Board, subject to the other terms of this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Cooperation Agreement (Cutera Inc), Cooperation Agreement (Cutera Inc), Cooperation Agreement (Pura Vida Investments, LLC)
Standstill. During Subject to the period (such period, the “Standstill Term”) commencing as provisions of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingsentence next following, the Investor (including SK ecoplant and the SPV) agrees that until January 1, 1999 it and its Subsidiaries Affiliates shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, direct or indirect rights or options to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities, direct or indirect rights or options to acquire any voting securities, or securities or instruments convertible into voting securities, of the Company (a “Derivative”)Company, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, (i) seek in any "solicitation" of "proxies" to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Act)proxy rules of the SEC) securities of the Company, or seek to advise or influence any Person, person or entity with respect to any voting of any securities of the Company;
, (fc) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " within the rules meaning of Section 13(d)(3) of the SEC Exchange Act, with respect to the Company or any voting securities of the Company;
, (i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jd) make any public announcement regarding, with respect to or take any action that could require make or submit a proposal or offer (with or without conditions) for the securities or assets of the Company to make a public announcement regarding, a potential Business Combination or any of extraordinary transaction involving the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates Subsidiaries, (e) submit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from making confidential, nonpublic proposals any regulatory agency with respect to the Board for a transaction involving a Business Combination following the public announcement by an acquisition of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its securities or assets, (f) otherwise act alone or in concert with others to seek to control the management, board of directors or policies of the Company; or (g) propose any of the foregoing unless and until such proposal is specifically invited by the Company. Based on the representations of Rothschild to the Company that Affiliates of Rothschild (which representation Rothschild hereby reaffirms) not under control of Rothschild have no access to any of the internal information or files of Rothschild and receive no information, recommendations or advice from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this AgreementRothschild, the Purchase AgreementCompany agrees that the prohibitions of the preceding sentence shall not apply to any Affiliates of Rothschild that are not under the control of Rothschild and are engaged in the regular business of trading in publicly-traded securities, Joint Venture Agreementso long as such affiliates have not received, or been given access to, any of the Preferred Distributor AgreementConfidential Information and have not received any instructions, recommendations or advice pertaining to an investment in each case, in accordance with or control of the terms hereof and thereofCompany from any party having access to any of the Confidential Information.
Appears in 3 contracts
Sources: Investment Agreement (Pacific Gulf Properties Inc), Investment Agreement (Five Arrows Realty Securities L L C), Investment Agreement (Five Arrows Realty Securities L L C)
Standstill. During The Stockholder agrees that, for a period of 18 months from the period (such perioddate hereof, the Stockholder will not, and will not cause or permit any of its directors, officers, partners, employees, representatives, financial, legal, accounting and other advisers and agents, including persons who after the date of this Agreement cease to be within one of the foregoing categories (collectively, “Standstill TermRepresentatives”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company affiliates or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation associates (as such terms are defined in Regulation 14A Rule 12b-2 under the Exchange Act) to (i) directly or indirectly acquire, or offer, propose or agree to acquire, any securities, debt obligations or assets (or any interests therein) of the Company or any of its subsidiaries or any rights or options to acquire any such securities, debt obligations or assets (for purposes hereof, “securities” shall include, without limitation, (x) all rights to acquire securities pursuant to the exercise of any rights in connection with any option, warrant, convertible or exchangeable security or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (y) any economic interest relating to securities, including without limitation, pursuant to a cash settled option or other derivative security, contract or instrument in any way related to the price of the underlying security), (ii) participate in the solicitation of proxies, or seek to advise or influence any Person, with respect to voting the vote of any securities of the Company;
(f) deposit person, regarding any securities or debt obligations of the Company or any of its subsidiaries, (iii) engage, or offer, propose or agree to engage, in a voting trust any merger or subject other business combination or acquisition transaction or any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, reorganization, or any purchase or sale of the Company’s any material amount of assets or businesses, purchase equity or debt securities or other indebtedness of any securities of or regarding the Company or any Derivativeof its subsidiaries, (iv) seek or propose to influence or control the Company’s management or policies, including the management and policies of its subsidiaries, (v) advise, assist, encourage, finance or invest in any similar transaction involving person in connection with any of the foregoing, (vi) disclose any plan, intention or proposal to do any of the foregoing, (vii) make any communications with the Company or its Representatives that could require the Company to make any public announcement or (iiviii) make any recapitalization, restructuring, liquidation request to waive or other extraordinary transaction with respect amend any provision of this agreement or to the Companypermit you to take any action specified herein, in each case without the prior written consent approval of the Board (a transaction described Company. Nothing in clauses (i) and (ii) that would result in a Change of Controlthis paragraph shall be deemed to prevent the Stockholder’s Representatives from engaging, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules ordinary course of the SEC with respect to the Company or any business, in brokerage, asset management, trust, underwriting, market making and other similar financial services ordinary course business activities involving securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Stockholder Agreement (Gramercy Capital Corp), Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.), Agreement for Sale of Membership Interests (Gramercy Capital Corp)
Standstill. During From the period date of this Agreement until the Expiration Date (such period, the “Standstill TermPeriod”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage or advise any other Person or assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than Permitted Purchases and purchases such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of Preemptive Right Sharesthe Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(d) (i) engage in, or become a party to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or clause (ii) if such acquisition or transaction would result in the Investors having beneficial ownership of greater than 9.99% of the Company’s outstanding common stock;
(e) sell, offer or agree to sell, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives through swap or hedging transactions or otherwise, voting rights decoupled from the Investor the economic equivalent of ownership of an amount of securities underlying common stock of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit held by the Investor from investing in a fund with respect Investors to which the Investor does not have or share decision-making authority over investment or divestment decisionsany Third Party;
(bf) make a tenderor in any way participate, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called in any meeting tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the stockholders assets of the Company and its subsidiaries, taken as a whole (each, an “Extraordinary Transaction”), it being understood and agreed that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or propose otherwise participating in any matter to be voted upon by such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board; or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any of the types of matters set forth above in this paragraph;
(g) enter into a voting trust or proxy, arrangement or agreement or subject any Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved by the Board;
(h) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as set forth herein, or (ii) propose seek, alone or nominate for election to in concert with others, the Board removal or resignation of any person whose nomination has not been approved by a majority member of the Board (excluding other than the Investor Designee, if anyNew Director);
(di) directly make or indirectly, encourage, accept be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or support a tender, exchange otherwise);
(j) make any request for stock list materials or other offer or proposal by any other Person or group (an “Offeror”) for securities books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(if such offer k) make any public statement or public proposal wouldwith respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, if consummated, result (ii) any change in a Change of Control the capitalization or dividend policy of the Company, such offer (iii) any other material change in the Company’s management, business or proposal is referred corporate structure, (iv) any waiver, amendment or modification to as an “Acquisition Proposal”);
(e) directly the Company’s certificate of incorporation or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)By-Laws, or seek to advise or influence any Person, with respect to voting other actions which may impede the acquisition of any securities of the Company;
(f) deposit any securities control of the Company in by any person, (v) causing a voting trust or subject any class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any arrangement securities exchange or agreement with respect to the voting (vi) causing a class of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any Derivativelitigation, arbitration or any similar transaction other proceeding against or involving the Company or any of its current or former directors or officers (iiincluding derivative actions) in order to effect or take any recapitalizationof the actions expressly prohibited by this paragraph 6; provided, restructuringhowever, liquidation or other extraordinary transaction that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the CompanyCompany against a Restricted Person, in each case without the prior written consent of the Board or (D) responding to or complying with a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)validly issued legal process;
(hm) act in concert enter into any negotiations, agreements or understandings with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms that the Investors are used in the rules of the SEC with respect prohibited from taking pursuant to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveparagraph 6; or
(kn) enter into discussions, negotiations, arrangements make any request or agreements with submit any Person relating proposal to amend or waive the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in terms of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, case which would reasonably be expected to result in accordance with the terms hereof and thereofa public announcement of such request or proposal.
Appears in 3 contracts
Sources: Investment Agreement (Cooperman Leon G), Letter Agreement (Glen Capital Partners Focus Fund, L.P.), Board Matters Agreement (Lionbridge Technologies Inc /De/)
Standstill. (a) During the period (such periodStandstill Period, the “Standstill Term”) commencing as of the First Closing Date each Wynnefield Party shall not, and continuing until the later of shall cause his or its Representatives not to, directly or indirectly:
(i) seek, alone or in concert with others, (A) to call a meeting of stockholders, (B) representation on the second Board, except as specifically contemplated in Section 1 of this Agreement or (2ndC) anniversary the removal of any member of the Second Closing Date, Board;
(ii) the date on which the Investor ceases to have the right to designate a director solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Board pursuant to Section 5shares of the Common Stock, and (iii) or from the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of the Schedule 14A promulgated under the Exchange Act) in or assist, encourage, advise or influence any Third Party (as defined below) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock then issued (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(iii) (A) form or join in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any shares of Common Stock (for the avoidance of doubt, excluding any group composed solely of the Wynnefield Parties and outstandingtheir Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Investor Company’s stockholders (including SK ecoplant other than to the Wynnefield Parties and their Affiliates and the SPVnamed proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust or similar arrangement (other than (x) to the Wynnefield Parties and its Subsidiaries shall not do their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case, of the following, except Wynnefield Parties and their Affiliates);
(iv) execute any written consent as approved, invited or waived by a stockholder with respect to the Company or the Boardits Common Stock, or except as contemplated by this Agreement:;
(av) without the approval of the Board, separately or in conjunction with any Third Party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly (including in communications to the media) propose or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other than Permitted Purchases and purchases similar business transaction involving the Company or a material amount of Preemptive Right Sharesthe assets or businesses of the Company or actively encourage, directly initiate or indirectly, acquire beneficial ownership support any other Third Party in any such activity; provided that the Wynnefield Parties shall be permitted to sell or tender their shares of Common Stock and/or or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction; and provided further that if a Third Party (not a Party or an Affiliate of a Party) commences an unsolicited tender offer or exchange offer for all of the outstanding shares of Common Stock Equivalents and/or any instrument or other Voting Securities that gives is recommended by the Investor Board, then the economic equivalent of ownership of an amount of securities Wynnefield Parties shall similarly be permitted to commence a tender offer or exchange offer for all of the Company (outstanding shares of Common Stock or other Voting Securities at the same or higher consideration per share, unless the decision of the Board to recommend such Third Party unsolicited tender offer or exchange offer is supported by a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit majority of Wynnefield Designees serving on the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsBoard;
(bvi) make a tender, exchange present at any annual meeting or other public offer to acquire Common Stock and/or Common Stock Equivalentsany special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(c) directly or indirectly, (ivii) seek to have called the Company waive, amend or modify any meeting provisions of the stockholders Company’s Certificate of Incorporation or Bylaws;
(viii) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or propose make any matter request pursuant to be voted upon Rule 14a-7 under the Exchange Act or otherwise, except as is reasonably necessary to enable the Wynnefield Parties to effect a tender offer or exchange offer permitted under Section 5(a)(v);
(ix) institute, solicit or join, as a party, or remain as a class member in any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the stockholders Wynnefield Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Wynnefield Parties or ▇▇▇▇▇▇ ▇▇▇▇ and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of the Company, Wynnefield Parties from responding to or complying with a validly issued legal process (iiand the Company agrees that this Section 5(a)(ix) propose or nominate for election shall apply mutatis mutandis to the Board Company and its directors, officers, partners, members, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the Wynnefield Parties);
(x) comment publicly (including in communications to the media) concerning the Company’s management, policies, strategy, operations, financial results or affairs or any person whose nomination transactions involving the Company or any of its subsidiaries, except (i) with respect to any Extraordinary Transaction that has not been approved by a majority of the Wynnefield Designees on the Board, (ii) with respect to the Wynnefield Parties’ commencing of a tender offer or exchange offer in accordance with Section 5(v), and (iii) as otherwise expressly permitted by this Agreement;
(xi) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by any of the Wynnefield Parties to any person in a private transaction (or a series of related private transactions) that is not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company, or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would result in the Wynnefield Parties selling in excess of 4.9% of the shares of Voting Securities beneficially owned by the Wynnefield Parties at such time, other than to a Third Party that agrees to be bound by the provisions of Section 5 of this Agreement during the term of this Agreement; or
(xii) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, partners, members, employees, agents or Affiliates of the Company, directly or indirectly, amend or waive any provision of this Agreement (including this Section 5 (a)(xii)). Notwithstanding anything to the contrary contained in this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Wynnefield Parties nor their respective Affiliates shall be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of the Company, in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Wynnefield Parties or their respective Affiliates, the Company or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to the Company of any such director or officer and applicable law, rules or regulations; (excluding B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Wynnefield Party, provided that a breach by such Parties of this Agreement is not the Investor Designeecause of the applicable requirement; (C) privately communicating to any of their potential investors or investors factual information regarding the Company, provided that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed; or (D) responding to or complying with a validly issued legal process.
(b) The provisions of this Section 5 shall not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to the Company and its stockholders and the Company Policies. Except as otherwise provided in this Agreement, the provisions of this Section 5 shall also not prevent the Wynnefield Parties from freely voting their respective shares of Common Stock.
(c) During the Standstill Period, each Wynnefield Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of the Company or any other persons to engage in actions which, if any);taken by such Party, would violate this Agreement.
(d) directly Anything to the contrary in this Section 5 or indirectlyelsewhere in this Agreement (including Section 2) notwithstanding, encouragethe Wynnefield Parties shall not be prohibited from (i) nominating directors for election at the 2021 Annual Meeting, accept (ii) submitting proposals for consideration by stockholders at the 2021 Annual Meeting; (iii) soliciting proxies for the election of its director nominees or support a tenderapproval of its stockholder proposals at the 2021 Annual Meeting, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in compliance with Regulation 14A under the Exchange Act); (iv) requesting that a proposal for consideration by stockholders at the 2021 Annual Meeting be included in the Company’s proxy materials for the 2021 Annual Meeting, in compliance with Rule 14a-8 under the Exchange Act; or seek to advise (v) making any public or influence private communication in connection with any Person, with respect to voting of any securities of the Company;
(f) deposit foregoing, in compliance with Rule 14a-9 and any securities other applicable provision of Regulation 14A under the Exchange Act. Anything to the contrary in Section 2 or elsewhere in this Agreement notwithstanding, the Company shall not be prohibited from (i) soliciting proxies in a voting trust or subject any securities of the Company opposition to any arrangement nomination, solicitation or agreement with respect proposal permitted to be made by the voting of such securities, including the granting of any proxy (other than Wynnefield Parties pursuant to this AgreementSection 5(d);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of in compliance with Regulation 14A under the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company Exchange Act or (ii) making any recapitalization, restructuring, liquidation public or other extraordinary transaction private communication in connection with respect to the Companyforegoing, in each case without compliance with Rule 14a-9 and any other applicable provision of Regulation 14A under the prior written consent Exchange Act.
(e) The provisions of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (gxii) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect Section 5(a) shall cease to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination apply following the public announcement of an Extraordinary Transaction that has been approved by the Company after the Second Closing Date that it has entered into Board and which is opposed by a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Wynnefield Designees serving on the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 3 contracts
Sources: Settlement Agreement (Wynnefield Partners Small Cap Value Lp I), Settlement Agreement (MVC Capital, Inc.), Settlement Agreement (MVC Capital, Inc.)
Standstill. During the term of his employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent holder of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any voting securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kiii) enter into discussionsbe employed by any person that, negotiationsdirectly or through its affiliates, engages in any of the foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or other awards, plans and arrangements and any other Common Stock received or agreements otherwise acquired by the Executive in connection with any Person relating or as a result of the Executive’s employment with the Company or service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Executive, the Executive will no longer be subject to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any limitations of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofSections 7(d).
Appears in 3 contracts
Sources: Separation Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. During the period (such periodcommencing on the date hereof and ending on the Standstill Termination Date, without the “Standstill Term”) commencing as prior consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary Company, each of the Second Closing DateGSO Funds agrees that none of it, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5GSO, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do nor any of the followingtheir Affiliates, except as approvedshall, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) effect or seek, offer or propose to effect:
(i) any acquisition (or proposal or agreement to acquire), of record or beneficially, by purchase or otherwise, of any of the Common Stock, or rights or options to acquire interests in any of the Common Stock (or any other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities thereof) of the Company (a “Derivative”other than the acquisition of Underlying Shares by any of the GSO Funds pursuant to (x) the express terms of the Statement of Resolutions to satisfy dividends or distributions or upon redemption settled in Common Stock or (y) the exercise of any Warrant), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bii) make a tenderany business combination, exchange merger, tender offer, similar transaction, acquisition of all or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting substantially all of the stockholders assets of the Company or propose other extraordinary transaction involving any matter to be voted upon by the stockholders member of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Company Group;
(diii) directly or indirectlyany proposal advanced publicly to seek any restructuring, encouragerecapitalization, accept or support a tenderliquidation, dissolution, exchange or other offer or proposal by similar transaction involving any other Person or group (an “Offeror”) for securities member of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Group;
(eiv) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A the proxy rules of the SEC) or consents to vote or consents to vote or otherwise with respect to any voting securities of any member of the Company Group, or make any communication exempted from the definition of “solicitation” by Rule 14a 1(1)(2)(iv) under the Exchange Act);
(v) other than pursuant to and in accordance with the rights expressly granted to the holders of the Preferred Stock in Section 9(b) of the Statement of Resolutions, any proposal advanced publicly to seek representation on the Board of any member of the Company Group or otherwise publicly seek to control or influence the management, the Board or policies of any member of the Company Group, including, without limitation, (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or seek to advise other actions that may impede or influence facilitate the acquisition of control of any member of the Company Group by any Person, with respect to voting (E) causing a class of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any arrangement securities exchange; or agreement (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(i) call a special meeting of the holders of Voting Securities of any member of the Company Group, including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group that is elected by holders of Voting Securities, (iv) solicit consents from holders of Voting Securities or otherwise act or seek to act by written consent with respect to the voting Company Group, or (v) make a request for any list of such securities, including holders of Voting Securities or other Company Group books and records; except to appoint and elect up to two directors to the granting of any proxy (other than Board pursuant to this Agreement)and in accordance with the rights expressly granted to the holders of the Preferred Stock in Section 9(b) of the Statement of Resolutions;
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipgroup” (within the meaning of Section 13(d)(3) of the Exchange Act) with any third party or knowingly instigate, limited partnership, syndicateencourage or assist any third party to do, or other group” as such terms are used enter into any discussions or agreements with any third party, in the rules each case, with respect to, any of the SEC with respect to actions set forth in Section 2.1(a); provided that the Company or any securities inclusion of the Company;
(i) request or propose to the Board or the Company (GSO or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) together solely with The Blackstone Group L.P. and/or its other professional representatives), directly Affiliates shall not constitute a breach or indirectly, any amendment or waiver of any provision violation of this Section 2.1 (including this clause (i2.1(c));
(j) make any public announcement regarding; provided, or further that such “group” does not take any action that could is restricted by this Section 2.1.
(d) take any action which is reasonably likely to cause or require GSO, the GSO Funds or any member of the Company Group to make a public announcement regarding, a potential Business Combination or regarding any of the types of matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in 2.1; provided that any manner: (A) the Investor public disclosure by GSO or any of its Affiliates from making confidentialon Schedule 13D, nonpublic proposals Schedule 13G or otherwise pursuant to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member Section 16 of the Board; Exchange Act or by any “group” (Cwithin the meaning of Section 13(d)(3) of the Investor Exchange Act) of which GSO or any of its Affiliates from exercising their respective rights, performing their respective obligations are members with The Blackstone Group L.P. and/or its other Affiliates shall not constitute a breach or violation of this Section 2.1(d) if the action disclosed in such filings is otherwise consummating the transactions contemplated permitted by this AgreementSection 2.1; or
(e) publicly disclose any intention, the Purchase Agreement, Joint Venture Agreement, plan or the Preferred Distributor Agreement, in each case, in accordance arrangement inconsistent with the terms hereof and thereofthis Section 2.1.
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Carrizo Oil & Gas Inc)
Standstill. During the period Standstill Term the Investor and its Affiliates (such periodcollectively, the “Standstill TermParties”) commencing as shall not (and the Investor shall cause its Affiliates not to), without the prior written consent of the First Closing Date and continuing until the later Board of Directors (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%or any committee thereof) of the shares of Common Stock then issued and outstandingCompany, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acquire beneficial ownership more than one percent (1%) of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent class or series of ownership of an amount of any equity or convertible debt securities of the Company or any of its subsidiaries (a “Derivative”whether by purchase, business combination, merger, consolidation, share exchange, joint venture or otherwise), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act), ) of proxies or seek to advise or influence any Person, consents with respect to voting of any securities of the Company or initiate any stockholder proposal with respect to the Company;
(fc) deposit any securities seek to advise, control or influence the management, Board of Directors or policies of the Company in or any of its subsidiaries, or take action for the purpose of convening a voting trust or subject any securities stockholders meeting of the Company to any arrangement or agreement Company, other than in the ordinary course of business with respect to (i) the voting Collaboration Agreement or (ii) any other commercial agreement between the Investor or an Affiliate of such securities, including the granting Investor and the Company or any of any proxy (other than pursuant to this Agreement)its Affiliates;
(gd) propose make any proposal or any public announcement (iincluding, for the avoidance of doubt, indirectly by means of communication with the press or media) any merger, consolidation, business combination, relating to a tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any offer for securities of the Company or any Derivativeof its subsidiaries or relating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation, restructuring, recapitalization, or any similar transaction involving the Company or (ii) its subsidiaries, or take any recapitalization, restructuring, liquidation or other extraordinary transaction with respect action that might require the Company to the Company, in each case without the prior written consent make a public announcement regarding any of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)foregoing;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) of the SEC Exchange Act (other than with respect to the Investor’s Affiliates) for the purpose of acquiring, holding, voting or Disposing of securities of the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and subsidiaries or taking any other professional representatives), directly actions restricted or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in prohibited under clauses (a) through (id) aboveof this Section 2.1, or take any steps in connection therewith; or
(kf) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating Third Party (other than with the Investor’s Affiliates) with respect to any of the foregoing actions referred to in restricted or prohibited under clauses (a) through (ie) above; provided, however, that nothing contained of this Section 2.1. Nothing in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit in any manner: (A) restrict the Investor or any of its Affiliates representatives from (1)(a) from the date of this Agreement until June 30, 2016, making confidential, nonpublic proposals a request directly to the Board for a transaction involving a Business Combination following the public announcement by of Directors of the Company after for written consent to submit a proposal regarding a possible business combination involving the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) Company and the Investor or any of its Affiliates from exercising their respective rightsAffiliates (a “Transaction”) directly to the Board of Directors of the Company on a confidential basis, performing their respective obligations which request shall be considered in good faith (provided that if the Company believes that the Investor has made a confidential proposal not meeting the requirements of clause (a), the Company will provide the Investor notice of such violation and the Investor shall have the opportunity to withdraw or otherwise consummating negate such proposal to ensure compliance with the transactions contemplated by provisions of this Agreement, the Purchase Agreement, Joint Venture AgreementSection 2.1), or (b) following June 30, 2016, making a proposal regarding a possible Transaction directly to the Preferred Distributor AgreementCEO or Board of Directors of the Company on a confidential basis, (2) acquiring or offering to acquire, seeking, proposing or agreeing to acquire any Third Party that owns any securities or assets of the Company or (3) acquiring any securities of the Company in each caseconnection with any mutual fund, in accordance with pension plan or employee benefit plan managed on behalf of employees or former employees of the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Investor Agreement (TESARO, Inc.), Stock Purchase Agreement (TESARO, Inc.)
Standstill. During the The Receiving Company agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) on the date hereof and terminating on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which that is eighteen months from the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingdate hereof, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither it nor any of the followingits Restricted Affiliates will, except as approved, unless specifically invited or waived in writing by the Company Company, directly or the Boardindirectly, or as contemplated by this Agreementin any manner:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acquire alone or in concert with others, by purchase or otherwise, any direct or indirect beneficial ownership interest in more than two percent (2%) of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, more than two percent (2%) of the economic equivalent of ownership of an amount of voting securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany of its subsidiaries;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to acquire Common Stock and/or Common Stock Equivalentsvote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any of its subsidiaries;
(c) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or any of its subsidiaries;
(d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting material portion of the stockholders assets, tangible or intangible, of the Company or any of its subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any material portion of the assets of the Company or any of its subsidiaries, except for such assets as are then being offered for sale by the Company or any of its subsidiaries, including those offered in the ordinary course of business;
(e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any of its subsidiaries which are prohibited by clauses (a) or (d) of this Section 5, except for such assets as are then being offered for sale by the Company or any of its subsidiaries;
(f) otherwise, alone or in concert with others, propose to the Company or any of its affiliates or any of their respective stockholders any merger, business combination, restructuring or recapitalization with the Company or any of its subsidiaries or seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or any of its subsidiaries or nominate any person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to any of its subsidiaries; provided that the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
foregoing clause (f) deposit shall not be construed to restrict the Receiving Company from taking (or refraining from taking) any securities action in the ordinary course of its commercial relationship with the Company in a voting trust under the Commercial Agreements or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)otherwise;
(g) propose (i) make any mergerrequest or proposal to amend, consolidation, business combination, tender waive or exchange offer, purchase terminate any provision of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);this Section 5; or
(h) act in concert announce an intention to do, or enter into any arrangement or understanding with others to do, any Third Party to take any action in of the actions restricted or prohibited under clauses (a) through (g) aboveof this Section 5; provided that, ornotwithstanding anything to the contrary in clauses (a) through (h) of this Section 5, if (1) a third party or group (A) publicly announces its intention to commence or commences a tender or exchange offer for at least 20% of the outstanding capital stock of the Company or (B) otherwise acquires at least 15% of the outstanding capital stock of the Company, (2) a third party publicly announces or commences a proxy contest with respect to the election of any directors of the Company in support of the third party’s proposal or offer relating to the foregoing, or (3) the Company enters into an acquisition or business combination (or an agreement related thereto) in which (A) the security holders of the Company would not own a majority of the surviving entity, (B) the Company is selling all or substantially all of the Company’s assets or (C) any person or group of persons would acquire, directly or indirectly, form, join (I) beneficial ownership of (x) 50% or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities more of the Company;
’s outstanding capital stock, (iy) request securities convertible into more than 50% of the Company’s outstanding capital stock or propose (z) any options, warrants or other rights to acquire more than 50% of the Board Company’s outstanding capital stock, or (II) control of the Company (or any within the meaning of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesRule 405 under the Securities Act of 1933), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or then the Receiving Company shall be entitled to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters actions set forth in clauses (a) through (ih) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.
Appears in 2 contracts
Sources: Confidentiality Agreement (Vital Images Inc), Confidentiality Agreement (Magenta Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date Period and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to unless otherwise approved by the Board pursuant to Section 5, and of Directors (iii) the date on which the excluding any Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingDesignees), the Investor (including SK ecoplant will not, and the SPV) and will cause each of its Subsidiaries shall Affiliates, directors, officers or employees not do any of the followingto, except as approveddirectly or indirectly, invited or waived by the Company or the Board, acting alone or as contemplated by this Agreementpart of a 13D Group:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire or agree, directly or indirectlyoffer, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)propose, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationwhether by purchase, tender or exchange offer, purchase by joining any 13D Group or otherwise, to acquire ownership of any, (x) of the businesses or material assets of the Company or any Significant Subsidiary (except for any transaction in the ordinary course of business), (y) any Equity Securities or any equity securities of any Significant Subsidiary, or (z) rights or options to acquire such ownership other than (i) the delivery of the Shares pursuant to the Stock Purchase Agreement, (ii) the acquisition of the Company’s assets securities as a result of any stock splits, stock dividends or businessesother distributions or recapitalizations or offerings made available by the Company to holders of Common Stock, purchase including rights offerings, (iii) any acquisition of the Company’s securities approved by the Board of Directors (excluding any Investor Designees), or (iv) any acquisition of the Company’s securities pursuant to a Permitted Transfer (each event listed in clauses (i) through (iv), a “Permitted Acquisition”);
(b) engage in any “solicitation” (within the meaning of the Exchange Act) of proxies or consents relating to the election of directors with respect to the Company, or become a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than the Investor Designees, or call, or seek or propose to call, any meeting of the Company’s shareholders in connection therewith;
(c) in any manner, agree, attempt, seek or propose to deposit any securities of the Company or any Derivativerights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Equity Securities of the Company in any voting trust or similar arrangement;
(d) form or join in the formation of a 13D Group (other than a 13D Group consisting only of the Investor and its Affiliates) with respect to any Equity Securities or equity securities of any Significant Subsidiary, or grant to any similar transaction involving the Company or (ii) Person any recapitalization, restructuring, liquidation or other extraordinary transaction proxy with respect to the Company, in each case without the prior written consent exercise of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC voting rights with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveShares; or
(ke) enter into discussionspublicly announce any intention, negotiations, arrangements plan or agreements arrangement or finance (or arrange financing for) any Person in connection with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Investor Rights Agreement (Western Digital Corp), Investor Rights Agreement (Hitachi LTD)
Standstill. During Each Investor agrees that, from the period (such period, date of this Agreement until the “Standstill Term”) commencing as expiration of the First Closing Date and continuing until the later Standstill Period, neither it nor any of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates or Family Members will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) Associates and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingFamily Members not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly, in any manner, acting alone or in concert with others, take any of the followingfollowing actions or advise, except as approvedrecommend, invited request, encourage, solicit, influence or waived by induce any other person to take any of the Company or the Boardfollowing actions, or as contemplated by this Agreementannounce any intention to take any of the following actions:
(a) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, or any notice of nomination or other than Permitted Purchases and purchases of Preemptive Right Sharesbusiness for consideration, or nominate any candidate for election to the Board;
(b) engage, directly or indirectly, acquire beneficial ownership in any “solicitation” (as defined in Rule 14a-1 of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent Regulation 14A) of ownership of an amount of securities of the Company proxies (or written consents) or otherwise become a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce or seek to advise advise, encourage or influence any Person, other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any voting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(c) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(d) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(fe) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the voting stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement or any securities of their respective Affiliates or Associates);
(f) deposit any shares of voting stock of the CompanyCompany in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board not in violation of the terms of this Agreement;
(h) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(i) request acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company; provided, however, nothing herein shall limit the ability of the Investors to disclose, publicly or otherwise, how it intends to vote with respect to any announced tender offer, exchange offer, merger, consolidation, business combination or other change-of-control transaction that is being submitted for the approval of shareholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(k) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i))3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(jl) make institute, solicit, assist or join any public announcement regardinglitigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(m) take any action that could require challenging the Company to make a public announcement regarding, a potential Business Combination validity or enforceability of any provisions of the matters set forth in clauses (a) through (i) abovethis Section 3; or
(kn) enter into any negotiations, discussions, negotiationsagreement, arrangements arrangement or agreements understanding with any Person relating to person concerning any of the foregoing actions referred (other than this Agreement) or encourage or solicit any person to in (a) through (i) above; providedundertake any of the foregoing activities. Notwithstanding the foregoing, however, that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prohibit or limit in any mannerrestrict the Investors from: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to communicating privately with the Board for a transaction involving a Business Combination following or the public announcement by Chief Executive Officer of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) the Investor Designee from performing its duties as a member communicating privately with stockholders of the Board; Company and others in a manner that does not otherwise violate this Section 3, or (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investor Investors or any of its Affiliates from exercising their respective rightsAffiliates or Associates, performing their respective obligations or otherwise consummating provided that a breach by Investor of this Agreement is not the transactions contemplated by cause of the applicable requirement. As used in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with :
(i) the terms hereof “Affiliate” and thereof.“Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include persons who become Affiliates or Associates of any person subsequent to the date of this Agreement;
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. During Each ADAR1 Party agrees that during the period commencing on the Effective Date and ending immediately following the final certification of the voting results for the 2028 Annual Meeting of Stockholders of the Company (such period, the “Standstill TermPeriod”) commencing as ), neither it nor any of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner, acting alone or in concert with others, take any of the following actions without the prior written consent (email being sufficient) of the Company or its Board of Directors (as defined below):
(a) acquire, offer or propose to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of capital stock of the Company generally on a pro rata basis), directly or indirectly, by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or maintaining a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), through swap or hedging transactions or otherwise, beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities capital stock of the Company (a “Derivative”)or any voting rights decoupled from the underlying voting securities that would result in the ADAR1 Parties and their Affiliates owning, exceptcontrolling or otherwise having any beneficial or other ownership interest of, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate, more than 4.9% of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock outstanding at such time;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
than in accordance with the recommendations of the Company’s Board of Directors (c) directly or indirectlythe “Board of Directors”), (i) seek make, submit, initiate, encourage or participate in (or provide notice of, or publicly disclose, an intention to have called do any meeting of the stockholders of the Company or propose foregoing) any matter to be voted upon by the stockholders of the Companyproposal with respect to, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeengage, if any);
(d) directly or indirectly, encouragein any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose consent revocations or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) with respect to: (A) any change in the composition, number or term of directors serving on the Board of Directors, the filling of any vacancies on the Board of Directors, the nomination or recommendation for nomination of a person for election at any Stockholder Meeting (as defined in Section 5.14) at which the Company’s directors are to be elected, or seek any election contest or removal contest with respect to advise the Company’s directors, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, (D) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, (E) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, (F) any stockholder proposal pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or bringing any other business at or before any Stockholder Meeting, or (G) any “withhold” or similar campaign with respect to any proposal for consideration or business brought at or before any Stockholder Meeting;
(c) recommend, request, induce, encourage or influence any Person, other person with respect to (i) pursuing any change in, or attempting to influence, the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, or (ii) the giving or withholding of any proxy, consent or other authority to vote, or in conducting any type of referendum with respect to the Company, whether binding or non-binding (other than such encouragement, advice or influence that is consistent with the Board of Directors’ recommendation in connection with such matter), provided that nothing shall limit the giving by the ADAR1 Parties or their Affiliates of a proxy or consent in respect of any matter so long as the voting of any securities the shares of capital stock of the Company owned thereby are voted in accordance with the terms of this Agreement where applicable;
(d) call, or request the calling of, a special meeting of the Company’s stockholders, or any other Stockholder Meeting (or the setting of a record date therefor), including any “town hall” meeting;
(e) make a request for or demand an inspection of a list of the Company’s stockholders or any books and records of the Company or any of its subsidiaries under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(f) deposit institute, solicit, assist or join any securities litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than to (x) enforce the provisions of this Agreement or the Confidentiality Agreement (as defined in Section 4.5(e) or (y) any counterclaims with respect to any proceeding initiated by or on behalf of the Company in a voting trust or subject any securities violation of this Agreement (and the Company agrees that this Section 4.2(f) (including the exceptions thereto) shall apply mutatis mutandis during the Standstill Period to any arrangement or agreement the Company and its directors, officers, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this AgreementADAR1 Parties);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in, maintain or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other ‘group’” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the capital stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement or Affiliates thereof);
(h) deposit any shares of capital stock of the Company in a voting trust or similar arrangement or subject any shares of capital stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the ADAR1 Parties or their respective Affiliates and otherwise in accordance with this Agreement;
(i) acquire or agree to acquire, offer, seek or propose to acquire, or cause to be acquired or in any way assist or facilitate any other person to acquire or agree to acquire, offer, seek or propose to acquire, ownership (including beneficial ownership) of any of the assets or businesses of the Company or any of its subsidiaries or any rights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board of Directors, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to a merger, consolidation, acquisition of control, tender or exchange offer, purchase, sale, license or other transfer of assets or securities, any other business combination, dissolution, liquidation, reorganization, spin-off or spin-out, share repurchase or similar transaction involving the Company, its subsidiaries or its business;
(k) sell, assign, or otherwise transfer or dispose of its shares of capital stock of the Company, or any rights decoupled from such shares, beneficially owned by them other than in open market sale transactions and block trade brokered sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any person that, to the ADAR1 Parties’ knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), (i) would result in such person, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s outstanding capital stock at such time or would increase the beneficial ownership interest of any person who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s outstanding capital stock at such time, (ii) is listed on SharkWatch50 or has otherwise directly or indirectly run or publicly disclosed an intention to run a proxy contest or publicly submitted stockholder nominations or proposals with respect to another publicly-traded company within the last five years or (iii) is as of the Effective Date a Schedule 13D filer with respect to the Company;
(l) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive any provision of this Agreement;
(m) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than in connection with a broad-based market basket or index) that relates to or derives any part of its value from any decline in the market price or value of any securities of the Company, that, in each case, would result in the Seller Affiliates having, in the aggregate, a total short position that exceeds 2.0% of the shares of Common Stock outstanding at such time;
(in) request publicly take any action challenging the validity or propose enforceability of any provision of this Agreement; or
(o) participate in any negotiations, discussions, agreements, arrangements or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities or otherwise take or cause any action inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the ADAR1 Parties from (x) communicating confidentially with the Chair of the Board of Directors or the Chief Executive Officer of the Company (or any other individuals in the Company authorized by such individuals) regarding any matter, so long as such communications are not intended to, and could not reasonably be expected to, require any public disclosure of its officerssuch communications, (y) communicating confidentially with the ADAR1 Parties’ Affiliates and the managing members, principals, partners (other than a partner who is solely a limited partner), directors, Affiliates employeesofficers, attorneysgeneral partners, accountants, financial advisors employees and other professional representatives), directly or indirectly, any amendment or waiver attorneys of any provision such party and of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingits Affiliates, or take (z) tendering shares, receiving payment for shares or otherwise participating in any action transaction that could require is consummated following the Company to make Closing involving a public announcement regarding, a potential Business Combination or any third party approved by the Board of Directors on the same basis as other stockholders of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ADAR1 Capital Management, LLC), Stock Purchase Agreement (Keros Therapeutics, Inc.)
Standstill. During (a) Subject to the terms and conditions of this Section 5.1, for a period of 18 months following the date hereof, neither the Investor nor any of its Affiliates will, without the prior approval of the Company:
(such periodi) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase, merger, take-over bid, business combination or otherwise, individually or acting jointly or in concert with any other Person (as determined in accordance with Section 1.9 of NI 62-104, hereinafter referred to as “Acting Jointly or in Concert”), any voting securities of the Company and/or Convertible Securities (a “Standstill TermShare Transaction”) commencing as if such Share Transaction would result in the Investor and its Affiliates having, directly or indirectly, beneficial ownership of, or control or direction over, more than 19.9% of an outstanding class of voting securities of the First Closing Date and continuing until Company (calculated in accordance with Section 1.8 of NI 62-104);
(ii) directly or indirectly, make, or in any way participate in, any solicitation of proxies to vote, or encourage, seek to advise or influence any other Person (other than an Affiliate of the later Investor) with respect to the voting of any voting securities of the Company (other than in respect of the voting securities of the Company held by the Investor pursuant to subsection (a)(i) of this Section 5.1 or Section 5.1(c));
(iii) otherwise act alone or in concert with others to seek to control the management of the Company or the Board or policies of the Company, other than through any Board Designee that may be elected to the Board;
(iv) enter into any discussions, arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aid, assist or encourage any other Person with respect to the foregoing; or
(v) make any public announcement with respect to the foregoing, except as may be required by applicable law, regulatory authorities or stock exchanges.
(b) The restrictions contained in Section 5.1(a) shall terminate immediately upon the earlier of (each a “Spring Event”):
(i) the second (2nd) anniversary date on which the Company or the Board announces an intention to agree or agrees with a Third Party to a merger, amalgamation, arrangement or similar transaction or the sale, directly or indirectly, of all or substantially all of the Second Closing Dateassets of the Company (collectively, a “Transaction”) which, if such Transaction is successfully completed, will result in shareholders of the Company holding less than 50% of the outstanding voting securities of the resulting corporation or entity;
(ii) the date on which the Investor ceases to have the right to designate Company enters into an agreement with a director to the Board Third Party pursuant to Section 5which the Company has agreed to support and recommend, and or announces its support for or recommendation in favour of, a take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company made by a Third Party (or an Affiliate of such Third Party);
(iii) the date upon which a Third Party makes an unsolicited take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company, or announces an intention to do so;
(iv) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do Company or any of its Affiliates agrees to the followingtransfer, except as approved, invited sale or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesdisposition, directly or indirectly, acquire of all or substantially all of the assets of the Company, on a consolidated basis, or announces an intention to do so; or
(v) the date on which a Third Party (together with any Affiliates) enters into an agreement to acquire, or acquires, (A) direct or indirect beneficial ownership of, (B) the right to exercise control or direction over, or (C) a combination of direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives and the Investor the economic equivalent of ownership of an amount of right to exercise control or direction over securities of the Company (a “Derivative”)Company, exceptwhich together with any securities already directly or indirectly held or controlled by the Third Party and its Affiliates, nothing in this Section 2.1(a) shall prevent or prohibit aggregate would constitute more than 50% of the Investor from investing in a fund with respect voting rights attached to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;outstanding voting securities of the Company.
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained The restrictions in this Section 2.1 5.1 shall prevent, restrict, encumber, or limit in any manner: (A) not prevent the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by acquiring securities of the Company after where such acquisition results from the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor Investor’s or any of its Affiliates from exercising their respective rights, performing their respective obligations Affiliates’ acquisition of the securities of a Person or otherwise consummating company which acquired the transactions contemplated by securities of the Company without the Investor’s solicitation or breach of this Agreement, provided that the Purchase Agreementprimary assets of such Person are not Common Shares, Joint Venture Agreementvoting securities or other securities convertible into Common Shares.
(d) Notwithstanding anything in this Section 5.1, the Investor shall be permitted at any time to make a confidential proposal to the Board regarding any of the transactions or the Preferred Distributor Agreementactivities contemplated in Section 5.1(a), in each case, in accordance to enter into confidential discussions or negotiations with the Board with respect to the terms hereof of any such transactions or activities and thereofto enter into any agreement with the Company providing for or relating to the consummation of any such transactions or activities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Skeena Resources LTD), Option Agreement (Skeena Resources LTD)
Standstill. During the period (such period18.1 Subject to Clause 18.2, the “Standstill Term”) commencing as each of the First Closing Date Sellers agrees and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateundertakes that, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Purchaser, from the date of this Agreement until Closing (a transaction described at which time the standstill provisions of the Relationship Agreement and the Standstill and Lock-Up Agreement shall come into force) or, if earlier, termination of this Agreement (in clauses accordance with its terms) it will not, and will procure that no member of its Group will:
(ia) and (ii) that would result acquire or offer to acquire, or knowingly cause or actively encourage or procure any other person to acquire or offer to acquire, any interest in a Change any shares or other securities of Control, is referred to the Purchaser as a “Business Combination”)result of which it or any other person including any member of its Group will or may acquire an interest in any shares or other securities of the Purchaser;
(hb) announce or make, or knowingly cause or procure any other person to announce or make on behalf of itself or any of any member of its Group or persons acting in concert with it or any member of its Group, an offer for the whole of the ordinary share capital of the Purchaser whether by tender offer or scheme of arrangement (under section 896 of the Companies Act) or otherwise (each being a General Offer) or (other than as required by the Code) announce that it or any member of its Group or any person acting in concert with it or any member of its Group is interested in acquiring the Purchaser;
(c) do any act as a result of which it or any member of its Group or any person with which it or any member of its Group is acting in concert may become obliged (under the Code or other applicable law or regulation) to announce or make a General Offer to acquire the Purchaser;
(d) act in concert with any Third Party other person in connection with any offer to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules acquire control of the SEC Purchaser to be made or announced by that other person or any member of its Group; or
(e) act in concert with any person with respect to the Company holding, voting or disposition of any shares or other securities of the CompanyPurchaser;
(if) request solicit, or propose make or participate in any solicitation of, or seek to persuade, shareholders of the Purchaser to vote in a particular manner at any meeting of the shareholders of the Purchaser, or requisition or join in requisitioning any general meeting of the Purchaser to consider or vote on a Board Control-Seeking Proposal;
(g) actively or publicly make any proposals for any merger, consolidation or share exchange involving shares or other securities of the Company Purchaser; or
(h) enter into any agreement or act in concert with any person in relation to any of the foregoing.
18.2 The restrictions in Clause 18.1 shall not:
(a) apply if a Seller or any member of its officersGroup announces an offer under Rule 2.7 of the Code to acquire the Purchaser, directorsor takes any other action which would require that Seller or any member of its Group to make an offer under Rule 9 of the Code, Affiliates employeesin each case if such offer is recommended by the directors of the Purchaser (and, attorneysfor the avoidance of doubt, accountants, financial advisors and other professional representatives), directly or indirectly, no Seller nor any amendment or waiver member of its Group will take any provision of this Section 2.1 (including this clause (i)such action unless it has first obtained such a recommendation);
(jb) make apply if a third party which is not acting in concert with either Seller or any public announcement regardingmember of their respective Groups makes, or take announces under Rule 2.7 of the Code, an offer to acquire the Purchaser’s issued ordinary share capital (whether such offer is recommended or not);
(c) apply to the acquisition by any action that could require the Company to make pension fund of a public announcement regarding, a potential Business Combination Seller or any member of its Group of shares or other securities in the Purchaser provided that the assets of the matters set forth in clauses (a) through (i) abovepension fund are managed under an agreement or arrangement with a third party which gives such third party absolute discretion regarding dealing, voting and acceptance decisions; or
(kd) enter into discussions, negotiations, arrangements or agreements with any Person relating apply to the foregoing actions referred to acquisition of any interest in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, shares or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member other securities of the Board; Purchaser by any connected fund manager or principal trader (C) as defined in the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCode).
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of the Entire Issued Share Capital of Ee Limited (Deutsche Telekom Ag), Agreement for the Sale and Purchase of Shares (Bt Group PLC)
Standstill. During the period (such periodcommencing on the date hereof and ending on the Standstill Termination Date, without the “Standstill Term”) commencing as prior consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DateCompany, (ii) the date on which the each Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do agrees that neither it nor any of the followingits Affiliates will (and each Investor will cause its Affiliates to not), except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases the acquisition of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership additional shares of Common Stock and/or by (i) the Warrant Holders pursuant to the the Warrant Agreements, (ii) Gavilan pursuant to any right of first offer under the Joint Development Agreement or (iii) the Warrant Holders or Gavilan pursuant to the exercise of Rights associated with the Common Stock Equivalents and/or owned by the Investors or their respective Affiliates, acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any instrument of the Company Group’s corporate loans, debt securities, Voting Securities, other Company Group securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the Voting Securities or other Company Group securities of any member of the Company Group or all or substantially all of the assets of any member of the Company Group;
(b) (i) call a special meeting of the holders of Voting Securities of any member of the Company Group including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group, (iv) solicit consents from securityholders or otherwise act or seek to act by written consent with respect to the Company Group, (v) conduct a referendum of securityholders of any member of the Company Group or (vi) make a request for any securityholder list or other Company Group books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
(c) make any statement or proposal to the Board of any member of the Company Group regarding, or make any public announcement, proposal or offer (including without limitation any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including without limitation, for the avoidance of doubt, indirectly by means of communication with the press or media):
(i) any acquisition of any of the securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the securities or all or substantially all of the assets of any member of the Company Group;
(ii) any business combination, merger, tender offer, exchange offer, similar transaction or other extraordinary transaction involving any member of the Company Group;
(iii) any restructuring, recapitalization, liquidation or similar transaction involving any member of the Company Group;
(iv) any proposal to seek representation on the Board of any member of the Company Group or otherwise seek to control or influence the management, the Board or policies of any member of the Company Group, including without limitation (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or other actions that gives may impede or facilitate the Investor acquisition of control of any member of the economic equivalent of ownership of an amount Company Group by any Person, (E) causing a class of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companydelisted from, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeecease to be authorized to be quoted on, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities exchange; or (F) causing a class of the Company;
(f) deposit any securities of the Company in a voting trust or subject any equity securities of the Company to any arrangement or agreement with respect to the voting become eligible for termination of such securities, including the granting of any proxy (other than registration pursuant to this Agreement)Section 12(g)(4) of the Exchange Act;
(g) propose (iv) any mergerrequest or proposal to waive, consolidation, business combination, tender terminate or exchange offer, purchase amend the provisions of this Agreement if such request or proposal would require the Company’s assets Investor or businesses, purchase of any securities member of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect Group to the Company, in each case without the prior written consent of the Board (make a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)public announcement;
(hvi) act in concert any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including without limitation this Section 2.1; or
(d) [reserved]
(e) knowingly instigate, encourage or assist any third party (including without limitation forming a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any Third Party such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in Section 2.1(c); or
(f) take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in which would require any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules member of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company Group to make a public announcement regarding, a potential Business Combination or regarding any of the matters actions set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof2.1(c).
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Sanchez Energy Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingPeriod, the Investor shall not, and shall cause its Affiliates (including SK ecoplant and the SPVcollectively, “Restricted Persons”) and its Subsidiaries shall not do any of the followingto, except as approveddirectly or indirectly, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases solicit proxies, designations or written consents of Preemptive Right shareholders, or conduct any binding or nonbinding referendum with respect to Company Shares, directly or indirectlyencourage or participate in any campaign to withhold proxies or votes for director nominees recommended by the Board, acquire beneficial ownership or make or in any way participate in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives “proxy” within the Investor meaning of Rule 14a-1 promulgated by the economic equivalent SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of ownership “solicitation”) to vote or withhold the vote of an amount any Company Shares with respect to any matter, or become a “participant” in any contested solicitation for the election of securities of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a “Derivative”), except, nothing participant” in this Section 2.1(a) shall prevent or prohibit support of the Investor from investing in a fund with respect to which recommendations of the Investor does not have or share decision-making authority over investment or divestment decisionsBoard;
(b) make (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board (other than as expressly contemplated by paragraphs 1(b)(i), 1(b)(v) and 2), (ii) seek, alone or in concert with others, the removal of any member of the Board, except as expressly set forth herein, or (iii) seek to call, request the call, join with any other stockholder in a tenderrequest to call or call, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsa special meeting of the Company’s stockholders;
(c) directly form, join, or indirectlyin any other way participate in, (ia “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) seek to have called any meeting of the stockholders Exchange Act with respect to the Company Shares, or deposit any Company Shares in a voting trust or similar arrangement, or subject any Company Shares to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any Company Shares (other than to a designated representative of the Company pursuant to a proxy or propose consent solicitation on behalf of the Board), other than solely with one or more Affiliates of Investor with respect to the Company Shares acquired in compliance with paragraph (e) below or to the extent such a group may be with the Company or any matter of its Affiliates (it being understood that the holding by persons or entities of Company Shares in accounts or through funds not managed or controlled by the Investor or any Investor Affiliate shall not give rise to a violation of this paragraph 6(c) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by the Investor or any of its Affiliates and, in their capacity as such, are or may be deemed to be voted upon by members of a “group” with the stockholders Investor within the meaning of Section 13(d)(3) of the Company, or (ii) propose or nominate for election Exchange Act with respect to the Board any person whose nomination has Common Shares; provided there does not been approved by a majority of exist as between such persons or entities, on the Board (excluding one hand, and the Investor Designeeor any of its Affiliates, if anyon the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this paragraph 6(c));
(d) directly make or indirectlybe the proponent of any nomination or stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise), encourageor encourage any nomination or stockholder proposal, accept or support a tender, exchange or other offer or proposal by at any other Person or group (an “Offeror”) for securities meeting of the Company stockholders or in connection with any action in lieu of a meeting (if such offer or proposal wouldother than as expressly contemplated by paragraphs 1(b)(i), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”1(b)(v) and 2);
(e) directly acquire, or indirectlyoffer, solicit proxies or consents or propose or seek or become agree to acquire, by purchase or otherwise, Economic Ownership of any Company Shares or a participant Synthetic Long Position with regard to Company Shares if, in any such case, immediately after taking such action, the Investor together with its Affiliates, would, in the aggregate, (i) Economically Own more than 30.0% of the then outstanding Company Shares or (ii) have a Total Net Long Position relating to a number of Company Shares greater than 30.0% of the then outstanding Company Shares;
(f) propose, offer or participate in (i) any effort to acquire the Company or any of its subsidiaries or any material assets or operations of the Company or any of its subsidiaries, (ii) any effort to engage in a solicitation transaction or enter into any agreement that would result in Economic Ownership by any person or entity or group (as such terms are defined in Regulation 14A Section 13(d)(3) of the Exchange Act) of more than 30% of the outstanding Company Shares at any time or outstanding voting power of the Company at any time, (iii) any tender offer, exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its subsidiaries, (iv) any effort with respect to share repurchases, dividends or self-tenders, other than as recommended by the Company, (v) any plan or proposal that would relate to any of the items listed in Item 4 of Schedule 13D promulgated under the Exchange ActAct (except as contemplated hereby), or seek to advise (vi) any recapitalization, restructuring, liquidation, disposition, dissolution or influence other extraordinary transaction involving the Company, any Personof its subsidiaries or any material portion of their businesses;
(g) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including without limitation any put or call option or “swap” transaction with respect to voting any security (other than a broad based market basket or index) or other Synthetic Short Position) that includes, relates to or derives any significant part of any its value from a decline in the market price or value of the securities of the Company;
(fh) deposit seek to advise, encourage, support or influence any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement person with respect to the voting of such securitiesvoting, including the granting giving or withholding of any proxy proxy, consent, or other authority with respect to the Voting Securities of the Company (other than pursuant to this Agreement);
(g) propose except that nothing herein shall restrict the Investor or its Affiliates from providing such advice, encouragement, support or influence (i) any merger, consolidation, business combination, tender or exchange offer, purchase of that is consistent with the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company recommendations on such matters or (ii) voting, giving or withholding of any recapitalizationproxy, restructuringconsent, liquidation or other extraordinary transaction authority on matters with respect to which the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result Investor is not required by Paragraph 4 to vote in a Change of Control, is referred to as a “Business Combination”specified manner);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request publicly disclose, or propose to cause or facilitate the Board public disclosure (including without limitation the filing of any document or report with the Company (SEC or any other governmental agency or any disclosure to any journalist, member of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly the media or indirectlysecurities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of paragraph 4 or waiver of paragraph 6 hereof, or otherwise (i) publicly seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Section 2.1 Agreement or (including this clause (i))ii) bring any action or otherwise act to contest the validity or enforceability of paragraph 4 or paragraph 6 hereof or publicly seek a release from the restrictions or obligations contained in paragraph 4 or paragraph 6;
(j) make or issue or cause to be made or issued any public disclosure, announcement regardingor statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations on behalf of the Board), or (ii) in support of any matter described in paragraph (b) or paragraph (d) above;
(k) make any request for stockholder list materials of the Company under Section 220(b) of the Delaware General Corporation Law or otherwise; or
(l) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to the foregoing, or advise, assist, encourage, support or seek to persuade others to take any action that could require with respect to any of the foregoing, or act in concert with others or as part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 6 shall prohibit or restrict (x) any Investor Nominee acting in his or her capacity as a director of the Company or member of a Committee of the Board from engaging in private discussions with the Board, any Committee, any director or member of the Company management or from requesting or receiving access to make any documents or information to which a public announcement regarding, director or member of a potential Business Combination Committee is entitled under applicable law or (y) the Investor or its Representatives from (i) communicating privately with the Board or any of the matters set forth Company’s officers regarding any matter in clauses a manner that does not otherwise violate this paragraph 6, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications (a) through (i) above; orincluding, without limitation, in any document or report filed with the SEC),
(kii) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained in this Section 2.1 shall prevent, restrict, encumberhas, or limit in any manner: (A) may have, jurisdiction over the Investor or any of its Affiliates from making confidentialin a manner that does not otherwise violate this paragraph 6 or (iii) communicating with its investors. Except as expressly provided in paragraph 4, nonpublic proposals each of the Investor and its Affiliates shall be entitled to vote Company Shares beneficially owned by it as it determines in its sole discretion and or tender Company Shares in any tender offer or exchange offer. Notwithstanding anything to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by contrary in this Agreement, nothing in this paragraph 6 shall limit the Purchase Agreement, Joint Venture Agreement, exercise in good faith by an Investor Nominee of such person’s duties or rights in such person’s capacity as a director of the Preferred Distributor Agreement, in each case, Company in accordance with the terms hereof and thereoftheir fiduciary duties.
Appears in 2 contracts
Sources: Board Appointment Agreement, Board Appointment Agreement (National CineMedia, Inc.)
Standstill. During Investor hereby agrees that, without the period (such period, the “Standstill Term”) commencing as prior approval of the First Closing Date and continuing until Board (as defined in the later of (i) the second (2nd) anniversary of the Second Closing DatePurchase Agreement), (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do and shall not permit or cause any Affiliate (as defined in the Purchase Agreement) or Representative of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementInvestor to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacting alone or with others, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase, merger, business combination or in any other manner, any voting securities or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company if after such acquisition Investor, together with its Affiliates, would own more than 10% of the outstanding capital stock of the Company or voting power of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person; provided that any investment by Investor or an Affiliate of Investor in third-party mutual funds or other similar passive investment vehicles that hold interests in securities of the Company or any of its Affiliates shall not be taken into account for the purpose of this subparagraph (a “Derivative”a), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tenderenter into any voting agreements, exchange trusts or similar arrangements with respect to voting securities of the Company other public offer to acquire Common Stock and/or Common Stock Equivalentsthan as set forth herein;
(c) make, or in any way participate, directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the rules promulgated by the Securities and Exchange ActCommission (the “Commission”)), or seek to advise or influence any Person, person or entity with respect to the voting by any third party of any voting securities of the Company;
(fd) deposit make any securities of the Company in a voting trust public announcement, directly or subject any securities of the Company to any arrangement or agreement indirectly, with respect to the voting to, or submit a proposal for, or offer of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) (a “13D Group”) of the SEC Securities Exchange Act of 1934, as amended (the “Exchange Act”) , in connection with respect any of the foregoing;
(f) act, alone or in concert with others, to seek to control, advise, change or influence the Company management, Board, governing instruments, policies or any securities affairs of the Company;
(ig) request disclose any intention, plan or propose to arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))foregoing;
(jh) make have any public announcement regardingdiscussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ih) above; or
(kj) enter into discussions, negotiations, arrangements or agreements with any Person relating to request the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates from making confidentialagents or Representatives, nonpublic proposals directly or indirectly, in any public manner, to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member amend or waive any of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing provisions.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement, Common Stock Purchase Agreement (Denali Therapeutics Inc.)
Standstill. (a) During the period (such periodStandstill Period, unless otherwise approved by the “Standstill Term”) commencing as of the First Closing Date Board or by ClearSign, each Investor Party shall not, and continuing until the later of shall cause its Representatives not to, directly or indirectly:
(i) acquire, offer or seek to acquire, agree to acquire or acquire rights or options to acquire, whether by purchase, tender or exchange offer, through the second acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, (2ndA) anniversary any securities of ClearSign, any rights decoupled from the underlying securities of ClearSign, or any derivative securities, contracts or instruments in any way related to the price of shares of Common Stock, in each case, if such acquisition, offer or seeking to acquire, agreement or transaction would result in any Investor Party having beneficial ownership of more than 3.5% of the Second Closing DateCommon Stock or Voting Securities outstanding at such time, including, without limitation, through the exercise of, or acquisition of, derivative securities or (B) any assets or liabilities of ClearSign;
(ii) the date on which the Investor ceases make any public announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to have the right a material amount of assets or securities of ClearSign or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to designate ClearSign or any of its subsidiaries or (C) any form of tender or exchange offer for Voting Securities, whether or not such transaction involves a director to the Board pursuant to Section 5, and Change of Control;
(iii) in respect of those matters enumerated in Section 3 hereof, other than as may be required by reason of employment in a broker-dealer in the date on which ordinary course, engage in, or assist in the engagement in (including, without limitation, engagement by use of or in coordination with a universal proxy card), any solicitation of proxies or written consents to vote any Voting Securities, communicate with stockholders of ClearSign pursuant to Rule 14a-1(l)(2)(iv) under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or from the holders of, any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of ClearSign (including, without limitation, by initiating, encouraging or participating in any “withhold” or similar campaign);
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any Voting Securities or any rights decoupled from the underlying securities held by any Investor Party to any person who is not (including SK ecoplant and SPVA) and a Party to this Agreement, (B) a member of the Board, (C) an officer of ClearSign or (D) an Affiliate or Associate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) with a known history of activism or known plans to engage in activism or that would knowingly (after due inquiry) result in such Third Party, collectively with its Subsidiaries beneficially own less than five percent (5.0%) Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock then issued and outstandingoutstanding at such time;
(v) take any public action in support of or make any public proposal or request that constitutes or would result in: (A) advising, controlling, changing, replacing or influencing any director or member of management of ClearSign, including, without limitation, any plans or proposals, and/or consenting to the Investor (including SK ecoplant and calling of any special meeting of stockholders to effect such plans or proposals, to change the SPV) and its Subsidiaries shall not do number or term of directors or to fill any of vacancies on the followingBoard, except as approvedset forth in this Agreement, invited (B) any material change in the capitalization, stock repurchase programs and practices or waived by dividend policy of ClearSign, (C) any other material change in ClearSign’s management, business or corporate structure, (D) seeking to have ClearSign waive or make amendments or modifications to the Company Certificate of Incorporation, the Bylaws or the BoardPolicy Regarding Stockholder Candidates for Nomination (collectively, the “Governing Materials”) or any other actions that may impede or facilitate the acquisition of control of ClearSign by any person, (E) causing a class of securities of ClearSign to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of ClearSign to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vi) act by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence ClearSign’s stockholders, management or the Board with respect to ClearSign’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions or strategy or to obtain representation of the Board or seek the removal of any director in any manner, except as contemplated expressly permitted by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bvii) make call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a tendermeeting is permitted by the Governing Materials, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsincluding, without limitation, a “town hall meeting”;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(fviii) deposit any securities of the Company Voting Securities in a any voting trust or subject any securities of the Company Voting Securities to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy Voting Securities (other than pursuant to (A) any such voting trust, arrangement or agreement solely between the Investor Parties that is otherwise in accordance with this AgreementAgreement or (B) customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(gix) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeseek, or knowingly encourage or advise any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) removal of directors with respect to ClearSign or seek, or knowingly encourage or take any recapitalization, restructuring, liquidation or other extraordinary transaction action with respect to the Company, in each case without the prior written consent election or removal of the Board (a transaction described in clauses (i) and (ii) that would result in a Change any directors of Control, is referred to as a “Business Combination”)ClearSign;
(hx) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any other way participate in a any “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveVoting Securities; provided, however, that nothing herein shall limit the ability of an Affiliate of any Investor Party to join in a “group” with any other Investor Party or Affiliate thereof comprising such Investor Party following the execution of this Agreement, so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that such Investor Party has formed a group with such Affiliate;
(xi) demand a copy of ClearSign’s list of stockholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of the State of Delaware providing for stockholder access to books and records (including, without limitation, lists of stockholders) of ClearSign;
(xii) make any request or submit any proposal to amend or waive the terms of this Section 6 other than through non-public communications with ClearSign that would not be reasonably likely to trigger public disclosure obligations for any Party;
(xiii) comment publicly about or disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to any transactions involving ClearSign, any director or member of management, policies, strategy, operations, financial results or affairs, any of its securities or assets, or this Agreement that is inconsistent with the provisions of this Agreement; or
(xiv) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action that the Investor Parties are prohibited from taking pursuant to this Section 6, or advise, assist, encourage or seek to persuade any person to take any action or make any statement with respect to any such action or otherwise take or cause any action or make any statement inconsistent with any of the foregoing.
(b) Notwithstanding anything to the contrary contained in this Section 2.1 6, each Investor Party shall prevent, restrict, encumber, not be prohibited or limit in any mannerrestricted from: (A) communicating privately with members of the Investor Board or senior officers of ClearSign regarding any matter in a manner consistent with communications that may be reasonably made by all stockholders of ClearSign, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Party or their respective Affiliates or any Third Party, subject in any case to any confidentiality obligations to ClearSign of its Affiliates from making confidentialany such director or officer and applicable law, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationrules or regulations; (B) the taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over such Investor Designee from performing Party; (C) generally fulfilling its duties obligations to its clients in its role as a member broker-dealer or an employee of a broker-dealer, provided, that a breach by any Investor Party of this Agreement is not the cause of the Boardapplicable requirement; or (CD) privately communicating with stockholders of ClearSign and others in a manner that does not otherwise violate this Agreement or applicable law, so long as such actions do not create a public disclosure obligation for such Investor Party or ClearSign and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with such Investor Party’s normal practices in the circumstances. The provisions of this Section 6 shall not limit in any respect the actions of any director of ClearSign in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to ClearSign and its stockholders and the Company Policies (it being understood and agreed that the Investor Parties shall not take any actions to indirectly violate any provision of this Section 6). The provisions of this Section 6 shall also not prevent the Investor Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 3 hereof).
(c) During the Standstill Period, each Investor Party shall refrain from taking any actions which could have the effect of encouraging, influencing or assisting any of its Affiliates from exercising their respective rightsThird Party to engage in actions which, performing their respective obligations or otherwise consummating the transactions contemplated if taken by any Investor Party, would violate this Agreement, except as may be required by reason of employment in a broker-dealer in the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofordinary course.
Appears in 2 contracts
Sources: Cooperation Agreement (ClearSign Technologies Corp), Cooperation Agreement (ClearSign Technologies Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership in excess of 15% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this excluding the acquisition of equity-based compensation pursuant to Section 2.1(a) shall prevent 13 hereof and the exercise of any options or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decisionconversion of any convertible securities comprising such equity-making authority over investment or divestment decisionsbased compensation;
(b) make a tender, exchange submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companybusiness for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved or oppose the directors nominated by a majority of the Board (excluding the Investor Designeeprovided, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities that such nominees were not nominated in contravention of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or ▇▇▇▇▇▇ or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(e) call or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇ to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, ▇▇▇▇▇▇ or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request or propose to the Board or the Company (engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make enter into any public announcement regardingarrangements, understandings or agreements (whether written or oral) with, or take advise, finance, assist or encourage any action other person that could require the Company engages, or offers or proposes to make a public announcement regardingengage, a potential Business Combination or in any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(k) enter into discussions, negotiations, arrangements take or agreements cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit ▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Fuel Systems Solutions, Inc.), Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date Period and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to unless otherwise approved by the Board pursuant to Section 5of Directors (other than the Series B Designees), each Holder will not, and (iii) the date on which the Investor (including SK ecoplant and SPV) and will cause each of its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingAffiliates not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, by joining a partnership, limited partnership, syndicate or other than Permitted Purchases and purchases 13D Group or otherwise, (A) Beneficial Ownership of Preemptive Right Sharesany Voting Securities, directly Derivative Securities or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of other securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer any rights to acquire Common Stock and/or Common Stock Equivalents;
(c) directly whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or indirectly, (i) seek to have called any meeting combination of the stockholders of the Company foregoing) any Voting Securities, Derivative Securities or propose any matter to be voted upon by the stockholders other securities of the Company, or other than (i) the acquisition of the shares of the Series B Stock pursuant to the Purchase Agreement, (ii) propose shares of Common Stock and other securities, if any, issuable upon the conversion of the Series B Stock, (iii) the acquisition of Voting Securities pursuant to Sections 4.2 and 4.3 hereof, (iv) the acquisition of Voting Securities and Derivative Securities as a result of any stock splits, stock dividends or nominate for election other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities or Derivative Securities generally, but only to the Board extent any person whose nomination has not been such securities are owned by a Holder, (v) in a transaction in which any Holder acquires an interest in an entity that owns shares of Voting Securities of the Company representing 2% or less of the Total Voting Power, or (vi) any acquisition of Voting Securities approved by a majority of the Directors (other than the Series B Designees) (clauses (i) through (vi) are referred to collectively as "Permitted Acquisitions") or (B) the Company or any of its Subsidiaries or all or substantially all of the assets of the Company or any of its Subsidiaries except pursuant to Section 4.2 hereof or as approved by a majority of the Directors (other than the Series B Designees);
(b) engage in any "solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of proxies or consents relating to the election of directors with respect to the Company, or become a "participant" in any "election contest" (within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than nominees for director who are to be elected by the Holders of Series B Stock in accordance with the Certificate of Designations;
(excluding c) induce or attempt to induce any other Person to initiate any stockholder proposal to seek election to or seek to place a representative on the Investor Designee, if anyBoard of Directors (except pursuant to the Certificate of Designations) or seek the removal of any member of the Board of Directors of the Company);
(d) directly in any manner, agree, attempt, seek or indirectlypropose to deposit any Voting Securities, encourage, accept Derivative Securities or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company or any rights to acquire (if such offer whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or proposal would, if consummated, result in a Change of Control any combination of the Companyforegoing) any Voting Securities, Derivative Securities or other securities of the Company in any voting trust or similar arrangement (other than any such offer voting trust or proposal is referred to as an “Acquisition Proposal”similar arrangement among two or more Holders);
(e) directly publicly announce any intention, plan or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under arrangement inconsistent with the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;foregoing; or
(f) deposit any securities form or join in the formation of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement 13D Group with respect to the voting of such securitiesany Voting Securities, including the granting of any proxy (other than pursuant to this Agreement)any such "group" consisting exclusively of Holders and any Affiliates of the Holders;
(g) propose except as provided in Section 4.2, finance (ior arrange financing for) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction Person in connection with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 3.1 shall prevent, restrict, encumber, or (i) limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member rights of the Board; or (C) the Investor or any Investors under each of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Certificate of Designations, and Registration Rights Agreement, (ii) prohibit any individual who is serving as a Director, solely in his or her capacity as a Director, from (x) exercising his or her fiduciary duties, (y) taking any action or making any statement at any meeting of the Preferred Distributor AgreementBoard of Directors or of any committee thereof, in each caseor (z) making any statement or disclosure required under federal securities Laws or other applicable Law, in accordance with (iii) restrict any disclosure or statements required to be made by any Investor under applicable Law, or (iv) limit the terms hereof and thereofrights of the Investors pursuant to Section 4.2 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Phillips Van Heusen Corp /De/), Investors' Rights Agreement (Phillips Van Heusen Corp /De/)
Standstill. During Without Buyer’s or Seller’s consent, as applicable, Seller and Buyer, respectively, shall not, and shall cause their respective Exchange Act Affiliates not to, for a period of two years from the period date of this Agreement: (such perioda) purchase or otherwise acquire, or offer, seek, propose, or agree to acquire, ownership (including beneficial ownership as defined in Rule 13d-3 under the “Standstill Term”Exchange Act) commencing as of the First Closing Date and continuing until the later of any (i) the second (2nd) anniversary securities of the Second Closing Dateother Party or any of its Exchange Act Affiliates, as applicable (a “Public Counterparty”), or (ii) direct or indirect rights or options to acquire any such securities described in Section 5.7(a)(i) or any securities convertible into any such securities described in Section 5.7(a)(i) (collectively, the date on which securities described in Section 5.7(a)(i) and Section 5.7(a)(ii) are “Securities”); (b) seek or propose, alone or in concert with others, to control or influence in any manner the Investor ceases to have management, the right to designate board of directors or the policies of the Public Counterparty, including a director to the Board proposal pursuant to Section 5, and Rule 14a-8; (iiic) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardmake, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesin any way participate, directly or indirectly, acquire beneficial ownership in any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A the proxy rules under the Exchange Act)Act and the regulations thereunder) to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of such securitiesany voting securities of a Public Counterparty; (d) make any proposal or any statement regarding any proposal, whether written or oral, to the board of directors of a Public Counterparty or any director or officer of a Public Counterparty or otherwise make any public announcement or proposal whatsoever with respect to any other transaction or proposed transaction between the Parties, any of a Public Counterparty’s security holders, or any of their respective Exchange Act Affiliates, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationacquisition, tender or exchange offer, purchase merger, sale of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativesecurities, or any similar transaction involving other business combination, unless (i) the Company Public Counterparty’s board of directors or its designated representatives have requested in advance the submission of such a proposal, (ii) such proposal is directed to the Public Counterparty’s board of directors or its designated representatives, and (iii) any recapitalizationpublic announcement with respect to such proposal is approved in advance by the Public Counterparty’s board of directors; or (e) providing financing (including guarantees), restructuringin whole or in part, liquidation or other extraordinary transaction to any Person with respect to the Company, in each case without the prior written consent of the Board (a transaction described matters in clauses (ia)-(d) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision above of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.7.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spruce Power Holding Corp), Asset Purchase Agreement (New Jersey Resources Corp)
Standstill. During the period (such period, the “Standstill Term”a) commencing Except as otherwise expressly provided in this Agreement or as specifically approved in writing by 66-2/3% of the First Closing Date and continuing until the later members of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by for a period of three (3) years from the date of this Agreement:
(a) other than Permitted Purchases and purchases , neither London Bridge, nor any of Preemptive Right Sharesits Affiliates or Associates, nor any Group which London Bridge Controls shall, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;:
(bi) make a tenderby purchase or otherwise, exchange acquire, agree to acquire or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the CompanyBeneficial Ownership of, or any Liens with respect to, any Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities (ii) propose or nominate for election to the Board including any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if anyvoting trust certificates representing such securities);
(dii) directly or indirectlyenter into, encouragepropose to enter into, accept solicit or support a tenderany Buyout Transaction or Third Party Offer, exchange or other offer purchase, acquire or proposal by propose to purchase, acquire, solicit or support the purchase or acquisition of any other Person or group (an “Offeror”) for securities portion of the Company (if such offer business or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, of its Subsidiaries by London Bridge or by any similar transaction involving the Company of its Affiliates or (ii) Associates or by any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Person;
(hiii) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipGroup (other than a Group that may be formed in the future consisting solely of London Bridge and its Affiliates) formed for the purpose of acquiring, limited partnershipholding, syndicatevoting or disposing of or taking any other action with respect to Voting Securities other than the Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than the Company with respect to any Voting Securities, or other group” become a "participant" in an "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A under the rules Exchange Act) relating to the Board, or otherwise attempt to acquire or alter Control of the SEC with respect to the Company business or any securities affairs of the Company;
(iv) request deposit any Voting Securities in a voting trust or propose enter into any voting agreement or arrangement with respect thereto (other than this Agreement) which would entitle any Person to Control more than 10% of the Board or Total Voting Power of the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Company;
(jvi) make publicly propose to do or permit any public announcement regardingof the foregoing, publicly propose to revise any of the standstill provisions of this Agreement, or otherwise take any action that could require challenging the Company to make a public announcement regarding, a potential Business Combination validity or any enforceability of the matters set forth in clauses (a) through (i) aboveforegoing or which would be inconsistent with the foregoing; or
(kvii) enter into discussionsassist, negotiationsadvise, arrangements encourage, provide funds for, negotiate or agreements otherwise participate with or support any Person relating with respect to, or otherwise seek to do, any of the foregoing actions referred to or, except as set forth in Section 2.3 below, participate, assist, advise, encourage, provide funds for or otherwise support any Third Party Offer.
(ab) through Nothing in this Agreement shall (i) aboveprohibit or restrict London Bridge from responding to any inquiries from any Other Holders as to London Bridge's intention with respect to the voting of any Voting Securities Beneficially Owned by it so long as such response is consistent with the terms of this Agreement; provided, however, that nothing contained (ii) prohibit London Bridge from Beneficially Owning Voting Securities issued as dividends or distributions in this Section 2.1 shall prevent, restrict, encumberrespect of, or limit in issued upon conversion, exchange or exercise of, securities which London Bridge is permitted to Beneficially Own under this Agreement; (iii) prohibit any manner: (A) the Investor employee or agent of London Bridge from purchasing or otherwise acquiring Voting Securities so long as he or she is not a member of a Group that includes London Bridge or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member or Associates or is not otherwise acting on behalf of the Board; or (C) the Investor London Bridge or any of its Affiliates or Associates; or (iv) prohibit London Bridge from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, disclosing in accordance with its obligations (if any) under the terms hereof and thereoffederal securities laws or other applicable law (if any) that the Company has become the subject of a Buyout Transaction or a Third Party Offer.
Appears in 2 contracts
Sources: Governance Agreement (London Bridge Software Holdings PLC), Governance Agreement (Phoenix International LTD Inc)
Standstill. During (a) ▇▇▇▇ agrees that from the period (such period, the “Standstill Term”) commencing as date of the First Closing Date and continuing this Agreement until the later of (i) the second (2nd) first anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have KLIM no longer has the right to designate nominate a director KLIM Designee to the Board of Directors pursuant to Section 55.1, and (iii) without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written approval of a majority of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any disinterested members of the followingBoard of Directors, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesKLIM shall not, directly or indirectly, acquire beneficial ownership and shall cause its Affiliates (including any Purchaser) not to, directly or indirectly:
(i) acquire, agree to acquire, or offer to acquire, by purchase or otherwise, any additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders securities of the Company, other than Conversion Shares issuable or issued upon conversion of the Notes in accordance with the terms thereof;
(ii) propose make, engage in, or nominate for election to the Board in any person whose nomination has not been approved by a majority way, participate in any “solicitation” of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under 14 of the Exchange Act)) to vote, or seek to advise or influence any Person, Person with respect to the voting of, any equity interests of the Company in favor of the election of any securities person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee) or in opposition of any individual nominated or designated for appointment or election to the CompanyBoard of Directors by the Company (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation);
(fiii) nominate any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee);
(iv) deposit any equity securities of the Company in a voting trust or similar contract or agreement or subject any equity securities to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any equity securities (in each case, other than to the Company or a Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the Company by or on behalf of the Company);
(v) make any public announcement with respect to, enter, agree to enter, propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its Subsidiaries, or purchase of a material portion of the assets, properties or equity securities of the Company, other than acquisitions of Conversion Shares pursuant to the Transaction Documents in accordance with the terms thereof;
(vi) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act), or knowingly advise, assist or encourage, or enter into any agreement with, any other Person, in connection with any action prohibited by this Section 4.3(a);
(vii) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements, or arrangements with any other Persons in connection with the matters prohibited by Section 4.3(a);
(viii) make public disclosure inconsistent with the requirements of this Section 4.3(a), or take any action that would reasonably be expected to require the Company to make any arrangement or agreement public disclosure with respect to the voting of such securities, including the granting of any proxy (other than pursuant to matters set forth in this AgreementSection 4.3(a);; or
(gix) propose publicly disclose any intention, plan, or proposal with respect to any of the foregoing.
(b) Notwithstanding Section 4.3(a), the foregoing provisions of Section 4.3(a): (i) shall not restrict KLIM’s ability to make a confidential proposal to the Board of Directors that is not required to be publicly disclosed under applicable law, (ii) shall not, and are not intended to restrict in any manner how KLIM or its Affiliates votes their Conversion Shares or exercises any rights under this Agreement or any other Transaction Document, and (ii) shall not, and are not intended to restrict in any manner KLIM or its Affiliates (A) from purchasing, holding or trading any Notes, (B) in their respective capacity as a lender of the Company or any of its Affiliates (including exercising, protecting, preserving or enforcing any rights, interests or remedies and/or taking any other actions, in each case in such capacity), or (C) from making any public announcement or statement (each, a “Response”) in response to any public announcement, proposal, offer or solicitation made by any other Person, provided, that at least five (5) Business Days prior to making any such Response, KLIM or its Affiliates shall provide the Company with prior written notice of KLIM’s or its Affiliate’s intention to make the Response and a draft of such Response, and the Company shall have a reasonable opportunity to provide comments to the draft Response, which comments shall be considered by KLIM or its Affiliate (as applicable) in good faith if timely provided.
(c) Notwithstanding Section 4.3(a), the restrictions set forth in this Section 4.3 shall terminate and be of no further force and effect if: (i) the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving more than fifty percent (50%) of any class of the Company’s equity securities, or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, purchase recapitalization, restructuring, sale, equity issuance, or otherwise), (ii) any Person or group publicly announces or commences a tender or exchange offer to acquire more than fifty percent (50%) of any class of the Company’s assets or businessesequity securities, purchase (iii) a change of any securities a majority of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent membership of the Board of Directors (excluding any change approved by a transaction described in clauses (i) and (ii) that would result in a Change majority of Control, is referred the directors serving on Board of Directors prior to as a “Business Combination”such change);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (iv) any Event of Default under the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors Notes has occurred and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofis continuing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Douglas Elliman Inc.), Securities Purchase Agreement
Standstill. During For a period commencing on the period (such period, date hereof and ending on the “Standstill Term”) commencing as of the First Closing Date and continuing until the later earlier of (i) thirty-six (36) months following the second (2nd) anniversary effective date of the Second Closing Date, Merger and (ii) the date on upon which the Investor ceases to have Shareholder no longer has the right to designate a nominate at least one (1) director to the Board Company’s board of directors (the “Board”) pursuant to Section 5the Governance Agreement, and (iii) the date on which Shareholder shall not, without the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the Company, directly or indirectly:
a. acquire, offer to acquire, or agree to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (“Exchange Act”)), by purchase or otherwise, any additional shares of Common Stock, or any rights or options to acquire any such securities or any securities convertible into such securities; provided that, in the event that at any time, whether due to an increase in the total outstanding shares of Common Stock, a sale of shares of Common Stock then issued and outstandingby the Shareholder or otherwise (made in compliance with the provisions of the lock-up agreement dated as of the date hereof with the Shareholder, as same may be amended from time to time (the “Lock-Up Agreement”), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right SharesShareholder beneficially owns, directly or indirectly, Common Stock representing less than the Shareholder Maximum Ownership Percentage, the Shareholder may acquire beneficial ownership additional shares of Common Stock and/or Common Stock Equivalents and/or or rights or options to acquire any instrument such securities or any securities convertible into such securities; provided, further, that gives the Investor Shareholder’s ownership percentage will not exceed the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsShareholder Maximum Ownership Percentage;
(b) make a tender, exchange b. call or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called call any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company;
c. submit, or participate with others that submit, any stockholder proposals for the vote or consent (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeecollectively, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offerorvote”) for securities of the Company stockholders (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred whether pursuant to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 14a-8 under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(fotherwise) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving proposal for consideration by the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)Board;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) aboved. solicit “proxies” or make, or, directly or indirectly, form, join or in any way participate in a or encourage any “partnership, limited partnership, syndicate, or other groupsolicitation” (as such terms are used in the proxy rules of the SEC with respect to Securities Exchange Commission) for proxies for any stockholder proposals of the Company or any securities nominations of candidates for election as directors or trustees of the Company;
e. form or join in a partnership, syndicate or other group, including, without limitations, a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Shareholder Shares, or deposit any Shareholder Shares in a voting trust, arrangement or agreement, except for such actions that may be permitted under the Lock-Up Agreement;
f. explicitly or implicitly, publicly or privately: (i) request encourage, recommend, advise, finance or propose urge others to the Board or put forward stockholder proposals of the Company (or any nominations with respect to directors/trustees of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or enter into any arrangements with any other person in connection with any of the matters set forth in clauses foregoing as they relate to the Company; (aii) through (i) above; or
(k) enter into discussions, negotiations, arrangements indicate support or agreements with approval for any Person stockholder proposals or nominations relating to the foregoing actions referred to in (a) through (i) above; provided, however, Company that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to are not otherwise approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofArticles; (iii) solicit or encourage others to vote against any matter recommended by the Board in accordance with the Articles; or (iv) act alone or in concert with others to seek control of, or otherwise effect a change to, the management or policies of the Company, unless otherwise approved by the Board in accordance with the Articles; or
g. take or seek to take, or cause or seek to cause or solicit others to take any action inconsistent with any of the foregoing as they relate to the Company. Notwithstanding the foregoing, this Agreement will not be construed to preclude, prohibit, restrict or otherwise require the Shareholder to take any actions that are permitted or contemplated by the Governance Agreement or the Company’s Articles.
Appears in 2 contracts
Sources: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp), Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)
Standstill. During ▇▇▇▇▇▇ shall not, and shall cause each other Person in the period (such period▇▇▇▇▇▇ Group not to, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later Governance Committee, acting alone or as part of a group: (i) the second (2nd) anniversary of the Second Closing Dateacquire, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardpropose, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesoffer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of Meritage (other than securities owned beneficially by any Person in the ▇▇▇▇▇▇ Group) or any of its subsidiaries or any material portion of the assets of Meritage or any of its subsidiaries or divisions, provided however, that if ▇▇▇▇▇▇ ▇▇▇▇▇ shares that bring his beneficial ownership of Common Stock and/or Common Stock Equivalents and/or Voting Securities below 5% of the outstanding Voting Securities of Meritage, ▇▇▇▇▇▇ or any instrument Person in the ▇▇▇▇▇▇ Group may reacquire Voting Securities from time to time provided that gives as a result of such acquisitions the Investor the economic equivalent of aggregate beneficial ownership of an amount of securities Voting Securities by the ▇▇▇▇▇▇ Group does not increase and thereafter exceed 4.99% of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting outstanding Voting Securities of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or Meritage; (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)make, or seek to advise or influence in any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orway participate, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other groupsolicitation” of “proxies” (as such terms are used in the rules of the SEC SEC) to vote or seek to advise or influence any Person with respect to the Company or voting of any securities of Meritage, or otherwise seek to control or influence the Company;
management of Meritage or its Board of Directors by means of statements or communications with any party other than Meritage’s Chief Executive Officer, Chief Financial Officer, or General Counsel or members of its Board of Directors; (iiii) request make any public announcement with respect to, or propose to the Board submit a proposal for, or the Company offer of (with or without conditions) any extraordinary transaction involving Meritage or any of its securities or assets, or take any other action that might reasonably be expected to force Meritage to make a public announcement regarding any of the matters of the type set forth in clauses (i) through (iii) of this Section 5(b); (iv) form, join, or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing clauses (i) through (iii) of this Section 5(b), (v) make or support in any fashion any shareholder proposal not supported by the Governance Committee or the Board of Directors of Meritage; (vi) call, or encourage any other Person to call, any special or annual meeting of shareholders of Meritage, (vii) cause Meritage’s directors, officers, directors, Affiliates employees, attorneysagents (including investment bankers), accountants, financial advisors and other professional representatives)partners or Affiliates to, directly or indirectly, engage in negotiations with, provide any amendment information to, induce or waiver attempt to induce or give encouragement to, any Person, in furtherance of any change of control of Meritage (whether pursuant to a tender or exchange offer, a stock or asset sale or a merger, consolidation, amalgamation, plan or arrangement or any other form of transaction), or any transaction that would be inconsistent with or frustrate the purpose of this Agreement, (viii) execute any written consent in lieu of a meeting of shareholders of Meritage except a written consent solicited by or on behalf of the Governance Committee or the Board of Directors of Meritage or (ix) except with his, her or its own personal financial and tax advisors, discuss Meritage or its business affairs or prospects with financial analysts, bankers, investment bankers, fund managers, investors or any other Persons engaged in the financial markets; provided, that nothing in this clause (ix) shall preclude ▇▇▇▇▇▇ from discussing such matters with such Persons as they relate to his historical roles with Meritage or in connection with capital raising activities for business ventures so long as any such discussions, activities or ventures are conducted by ▇▇▇▇▇▇ in compliance with this Agreement, the Settlement Agreement and his continuing obligations under Sections 8 and 9 of the Employment Agreement. In addition, ▇▇▇▇▇▇ agrees not to request Meritage to directly or indirectly amend or waive any provision of this Section 2.1 (including this clause (i5(b));
(j) make any public announcement regarding, or to take any action that designed to or which could reasonably be expected to require the Company Meritage to make a public announcement regarding, a potential Business Combination or regarding any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5(b).
Appears in 2 contracts
Sources: Cooperation Agreement (Meritage Homes CORP), Cooperation Agreement (Meritage Homes CORP)
Standstill. During Until the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Termination Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingGroup agrees that, except as approved, invited or waived by the Company or the Board, or as contemplated by otherwise specifically provided in this Agreement:
(a) other than Permitted Purchases and purchases , no member of Preemptive Right Sharesthe Investor Group shall, in any way or in any capacity, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities alone or in concert with others, except for such actions as Nominee may take in his capacity as a director of the Company in support of transactions and initiatives approved or undertaken by the Board:
a. make, or in any way participate in, or encourage any “solicitation” (a as such term is used in the proxy rules of the Securities and Exchange Commission (the “DerivativeSEC”), except, nothing in this Section 2.1(a) shall prevent of proxies or prohibit the Investor from investing in a fund consents with respect to which the Investor does not have election or share decision-making authority over investment removal of directors or divestment decisionsany other matter or proposal;
b. initiate, propose or otherwise “solicit” (bas such term is used in the proxy rules of the SEC) make a tenderstockholders of the Company for the approval of any stockholder proposal, exchange whether made pursuant to Rule 14a-8 or other public offer to acquire Common Stock and/or Common Stock EquivalentsRule 14a-4 under the Exchange Act or otherwise;
(c) directly or indirectly, (i) c. seek to have called any call, or to request the call of, or call a special meeting of the stockholders of the Company Company; or, in its capacity as a stockholder, make a request for or propose take any matter action to be voted upon by the stockholders obtain or retain any list of the Company’s stockholders or other Company records;
d. seek election or appointment to, or (ii) propose representation on, or nominate for election to or propose the Board nomination of any person whose nomination has not been approved by a majority candidate to, the Board, except as specifically contemplated in Section 1; or seek the removal of any member of the Board (excluding Board, or a change in the Investor Designee, if any)composition or size of the Board;
(d) directly e. form or indirectlyjoin in a partnership, encouragelimited partnership, accept or support a tender, exchange syndicate or other offer or proposal by any other Person or group, including, without limitation, a group (an “Offeror”as defined under Section 13(d) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) Voting Securities, deposit any securities of the Company in Voting Securities into a voting trust or subject any securities Voting Securities to any voting agreement (other than solely with other members of the Company Investor Group with respect to Voting Securities now or hereafter owned by them in accordance with the terms of this Agreement) or take any arrangement other action that would limit or agreement otherwise restrict the ability of the Investor Group to vote or cause to be voted the Investor Voting Securities held from time to time in accordance with this Agreement;
f. with respect to the voting of such securitiesCompany or the Voting Securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act or (ii) participate in, or take any action pursuant to, any “stockholder access” proposal that may be implemented by the SEC, whether in accordance with former Rule 14a-11 or otherwise;
g. except at the request of the Board, acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any Voting Securities generally), whether by purchase, tender or exchange offer, directly through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any Voting Securities if, as a result of such acquisition, the members of the Investor Group would beneficially own in the aggregate in excess of 14.5% of the then outstanding Voting Securities;
h. except at the request of the Board, seek, propose, participate in, support, facilitate or assist any third party to seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivativeof its Affiliates or Associates;
i. except at the request of the Board, enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any similar transaction involving other Person in connection with any of the Company foregoing;
j. make any public statement or (ii) public disclosure regarding any recapitalizationintent, restructuringpurpose, liquidation plan or other extraordinary transaction proposal with respect to the Board, the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlits management, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly policies or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (affairs or any of its officerssecurities or assets or this Agreement that is inconsistent with the provisions of this Agreement, directorsincluding any intent, Affiliates employeespurpose, attorneysplan or proposal that is conditioned on, accountantsor would require waiver, financial advisors and other professional representatives)amendment, directly nullification or indirectlyinvalidation of, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a any public announcement regardingdisclosure relating to any such intent, a potential Business Combination purpose, plan, proposal or any of the matters set forth in clauses (a) through (i) abovecondition; or
(k) enter into discussions, negotiations, arrangements k. take any action challenging the validity or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in enforceability of this Section 2.1 shall prevent, restrict, encumber2, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by request the Company after or Board to agree to amend or to waive any provision of this Section 2 either publicly or in a manner that is reasonably likely to require the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) Company to disclose the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofrequest publicly.
Appears in 2 contracts
Sources: Board Nomination Agreement (Magnetek, Inc.), Board Nomination Agreement (Fundamental Global Partners)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s Affiliates or agents or other persons acting on which the Investor (including SK ecoplant his or its behalf not to, and SPV) and will cause his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall respective Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called any meeting of the stockholders of the Company alone or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by in concert with any other Person individual or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldentity, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationby purchase, tender or offer, exchange offer, purchase of the Company’s assets agreement or businessesbusiness combination or any other manner, purchase beneficial ownership of any securities of the Company or any Derivative, or securities of any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Affiliate of the Company, in each case without the prior written consent if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than 14.99% of the Board (a transaction described in clauses (i) and (ii) that would result in a Change outstanding shares of Control, is referred to as a “Business Combination”)Common Stock;
(hb) act in concert with submit any Third Party shareholder proposal (pursuant to take Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any action in clauses notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(ac) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the SEC nominees of the Board at the 2011 Annual Meeting or 2012 Annual Meeting as set forth in this Agreement;
(e) seek, in any capacity other than as a member of the Board, to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(f) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) publicly disparage any member of the Board or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Navarre Corp /Mn/)
Standstill. During Except with the period (such period, the “Standstill Term”) commencing as prior written consent of the First Closing Date and continuing until Company, at all times during the later of Standstill Period (i) the second (2nd) anniversary of the Second Closing Dateas defined below in Section 21), (ii) the date on which the each Investor ceases to have the right to designate a director to the Board pursuant to Section 5agrees, severally, but not jointly, not to, directly or indirectly, and will cause each of its respective Affiliates (iiias defined in Section 21) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingnot to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other than Permitted Purchases and purchases individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of Preemptive Right Sharesany kind or structure (collectively, directly a "Person") to effect or indirectlyseek, acquire beneficial ownership offer or propose (whether publicly or otherwise) to effect or participate in, any "solicitation" of Common Stock and/or Common Stock Equivalents and/or "proxies" (as such terms are used in the proxy rules of SEC) to vote any instrument that gives the Investor the economic equivalent of ownership of an amount of securities Voting Securities of the Company (a “Derivative”)or consent to any action from any holder of any Voting Securities of the Company or conduct or suggest any binding or nonbinding referendum or resolution or seek to advise, except, nothing in this Section 2.1(a) shall prevent encourage or prohibit the Investor from investing in a fund influence any Person with respect to which the Investor does not have voting of or share decision-making authority over investment or divestment decisionsthe granting of any consent with respect to any Voting Securities of the Company;
(b) make a tenderpropose or nominate, exchange or other public offer cause or encourage any Person to acquire Common Stock and/or Common Stock Equivalentspropose or nominate, any candidates to stand for election to the Board, or seek the removal of any member of the Board;
(c) directly form, join or indirectlyotherwise participate in any "partnership, limited partnership, syndicate or other group" (iother than any group among some or all of the Affiliates of the Investors) within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock, or deposit any shares of Common Stock in a voting trust or similar arrangement, or subject any shares of Common Stock to any voting agreement or pooling arrangement, or grant any proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or otherwise act in concert with any Person with respect to the Common Stock (other than Affiliates of the Investors);
(d) seek to have called any call, or to request the call of, or call a special meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate make a request for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control list of the Company, such offer 's stockholders or proposal is referred to as an “Acquisition Proposal”)other Company records;
(e) directly otherwise act, alone or indirectlyin concert with others, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), to control or seek to advise control, to seek representation on, or to influence any Personor seek to influence, with respect to voting of any securities whether through litigation or otherwise, the management, the Board or the policies of the Company; provided, however, that nothing herein shall prohibit the Investors from complying with legal or regulatory requirements, including, without limitation, the filing of any report or schedule required to be filed with the SEC, and provided, further that each of the Investors and their Affiliates, may privately communicate their views to the management or the Board;
(f) deposit effect, seek to effect or in any way assist or facilitate any other Person in effecting or seeking to effect any: (i) tender offer or exchange offer to acquire securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting Company; (ii) acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) interest in any merger, consolidation, material asset or business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries; (iii) merger, acquisition, share exchange or any similar transaction other business combination involving the Company or any of its subsidiaries; or (iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyCompany or any of its subsidiaries or material portion of its or their businesses;
(g) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through any swap or hedging transaction or otherwise, any security of the Company or any right decoupled from such underlying security held by either Investor to any Person that would knowingly result in such Person, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 10% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Person who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 10% or more of the shares of the Common Stock outstanding at such time, except in each case without the prior written consent of the Board (in a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)approved by the Board;
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to request that the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly Representatives amend or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above3; or
(ki) enter into discussionsotherwise take, negotiationsor solicit, arrangements cause or agreements encourage others to take, any action inconsistent with any Person relating of the foregoing. Notwithstanding anything to the foregoing actions referred to in (a) through (i) above; providedcontrary, however, that nothing contained in this Section 2.1 Agreement shall preventprohibit or restrict any director of the Company, restrictincluding any New Nominee, encumber, from exercising his or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its her rights and fiduciary duties as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Director Nomination Agreement (Springowl Associates LLC), Director Nomination Agreement (Forestar Group Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that during the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Standstill Period he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall behalf not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire by purchase, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange offer, agreement or other offer business combination or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting manner beneficial ownership of any securities of the Company, if after completion of such acquisition or proposed acquisition, the members of the Shareholder Group, in the aggregate, would beneficially own more than ten percent (10%) of the outstanding shares of Common Stock (based on the latest annual, quarterly or other report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), excluding the acquisition of equity-based compensation pursuant to Section 11 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation;
(fb) deposit submit any securities shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of the Company in a voting trust nomination or subject other business for consideration, or nominate any securities of the Company to any arrangement or agreement with respect candidate for election to the voting of such securitiesBoard or oppose the directors nominated by the Board, including the granting of any proxy (other than pursuant to as expressly permitted by this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than (i) with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement), (ii) to the extent such a group may be deemed to result with the Company any of its Affiliates as a result of this Agreement or (iii) a voting agreement entered into pursuant to a Sale Transaction (as defined below) which has been approved by a majority of the Board;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act, in each case, to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than the Shareholder Group and their Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been publicly announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇, in his capacity as a shareholder of the Company, to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the Company, or members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request or propose to the Board or the Company (engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make any public announcement regarding, demand or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any request for inspection of the matters set forth in clauses (a) through (i) above; orCompany’s records under the Georgia Business Corporation Code;
(k) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(l) take or cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit ▇▇▇▇▇▇▇ from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either approved by the Board or required for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement ▇▇▇▇▇▇▇ to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. During the period (such perioda) Sherborne agrees (on behalf of itself, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) Sherborne Designee and its Subsidiaries beneficially own less than five percent affiliates) that, during the Covered Period (5.0%) of the shares of Common Stock then issued and outstandingas defined below), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived unless specifically requested in writing by the Company or a majority of the Board, it shall not, and shall cause each of the members of the Sherborne Group (including the Sherborne Designee) not to, directly or as contemplated by this Agreementindirectly (including, without limitation, through its advisors, agents, representatives or third parties), in any manner, alone or in concert with others:
(ai) other than Permitted Purchases and purchases of Preemptive Right Shares(A) engage in, directly or indirectly, acquire beneficial ownership any “solicitation” of Common Stock and/or Common Stock Equivalents and/or proxies (as such term is used in the proxy rules promulgated under the Exchange Act) or consents to vote, or seek to advise, knowingly encourage or knowingly influence any instrument that gives person with respect to the Investor the economic equivalent voting of ownership of an amount of any securities of the Company including for the election of individuals to the Board or stockholder proposals, (B) become a “Derivative”), except, nothing participant” in this Section 2.1(a) shall prevent or prohibit any contested “solicitation” for the Investor from investing in a fund election of directors with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A or used under the Exchange Act), other than a “solicitation” or seek acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting, (C) make or be the proponent of any stockholder proposal (pursuant to advise Rule 14a-8 under the Exchange Act or influence any Personotherwise), (D) grant a proxy with respect to voting of its Common Stock to any securities person not a party to this Agreement, director or officer of the Company, a member of the Sherborne Group or a Sherborne Representative (as defined below) (a “Third Party”) or (E) disclose publicly or to any Third Party its voting intentions or votes as to matters submitted to a stockholder vote during the Covered Period, except as to this clause (E), to the extent legally required, as to its vote on any proposal with respect to an Extraordinary Transaction;
(fii) (A) form, join, knowingly encourage, knowingly influence or act in concert with in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not members of the Sherborne Group with respect to the Company or its securities or (B) agree to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in a any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesthereof, including the granting of any proxy (other than pursuant to except as expressly set forth in this Agreement);
(giii) acquire, offer or propose (i) any mergerto acquire, consolidationor agree to acquire, business combinationdirectly or indirectly, whether by purchase, tender or exchange offer, purchase through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Company’s assets Exchange Act), through swap or businesseshedging transactions or otherwise, purchase of any securities of the Company or any Derivativerights decoupled from the underlying securities that would result in the Sherborne Group (together with the members of the Sherborne Group) owning, controlling or otherwise having any beneficial or other ownership interest in more than 20.0% in the aggregate of the voting power of the stock of the Company or 20.0% of an economic position in the Company at such time (such percentage, the “Ownership Limit”); provided, however, that nothing herein will require securities to be sold to the extent the members of the Sherborne Group, collectively, exceed the Ownership Limit under this paragraph as the result of a share repurchase that reduces the number of outstanding shares of Common Stock;
(iv) except in a transaction approved by the Board or an open market broker sale transaction, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities held by the Sherborne Group to any Third Party that would result in such Third Party, together with its Affiliates and Associates, to your knowledge after reasonable inquiry owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate 5% or more of the shares of Common Stock outstanding at such time;
(v) except in a transaction approved by the Board or an open market broker sale transaction, sell, transfer, assign or convey, directly or indirectly, any securities of the Company to any person who to your knowledge after reasonable inquiry has previously initiated or participated in a proxy contest or other nomination or proposal campaign with respect to any public company (including the Company);
(vi) sell, transfer, assign or convey, directly or indirectly, any rights decoupled from the underlying securities held by any member of the Sherborne Group to any person;
(vii) make or submit, seek to make or submit, cause or participate in, or in any similar way knowingly assist or knowingly facilitate any other person to make or submit or seek to make or submit to the Company any offer or proposal for any tender or exchange offer, merger, consolidation, acquisition, business combination, recapitalization, reorganization, sale or acquisition of assets, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public (or reasonably expected to become public) statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude Sherborne or any member of the Sherborne Group from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company;
(viii) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(ix) (A) call or seek to call any meeting of stockholders, including by written consent, (B) seek representation on the Board, except as set forth herein, (C) seek the removal or election of any member of the Board or management, other than in accordance with any recommendation of the Board, (D) solicit consents from stockholders or otherwise act or seek for stockholders to act by written consent, other than in accordance with any recommendation of the Board, (E) conduct a referendum of stockholders, (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise; or (G) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing clause (G) shall not prevent Sherborne or any of the members of the Sherborne Group from (i) bringing litigation against the Company to enforce any provision of this Agreement, (ii) making counterclaims with respect to any recapitalizationproceeding initiated by, restructuringor on behalf of, liquidation the Company or its Affiliates against Sherborne or any of the members of the Sherborne Group in connection with this Agreement, (iii) exercising statutory appraisal rights or (iv) responding to or complying with validly issued legal process;
(x) make any proposal or request with respect to: (A) any change in the Board, including the number or term of directors or the filling of any vacancies on the Board other extraordinary transaction than as provided under Section 1 of this Agreement, (B) any change in the capitalization or dividend policy of the Company, (C) any change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Amended and Restated Certificate of Incorporation or Second Amended and Restated Bylaws, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xi) make any public (or reasonably expected to become public) disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, in each case without its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the prior written consent provisions of this Agreement;
(xii) make any public (or reasonably expected to become public) disclosure, announcement or statement to take any of the Board foregoing actions or initiate or enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(a transaction described xiii) other than with respect to the Sherborne Designee as not prohibited under (and in clauses accordance with) the Company Policies, initiate discussions with any employee at the Company other than the Chief Executive Officer, the Chief Financial Officer and the Chief Legal Officer as set forth in the proviso set forth below regarding permitted private communications;
(ixiv) enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, including, without limitation, those related to pecuniary matters, compensation, consulting services, nomination obligations to act for the benefit of or report to the Sherborne Group or otherwise containing any restrictions or requirements on any such individual of any nature, featuring any voting or action commitments as to any matter or otherwise relating, directly or indirectly, to the Company, such individual’s relationship or potential relationship with the Company or the Sherborne Group’s investment or involvement in the Company, other than ordinary course agreements between members of the Sherborne Group and their investors (ii) that would result in a Change of Controlcollectively, is referred to as a “Business CombinationArrangements”);
(hxv) act in concert enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (that Sherborne or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesthe members of the Sherborne Group are prohibited from taking pursuant to this Section 2(a); or
(xvi) request, directly or indirectly, any amendment or waiver of any provision of the foregoing; provided, that the restrictions in this Section 2.1 2(a) shall not be deemed to prohibit the Sherborne Group (including this clause (i));or the Sherborne Designee) from communicating privately with the Company’s Chief Executive Officer, Chief Financial Officer, Chief Legal Officer, the Chair of the Board, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(jb) make any public announcement regardingDuring the Covered Period, Sherborne shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or by any of the matters set forth members of the Sherborne Group, to be present for quorum purposes and to be voted, at the Company’s annual and special meetings of stockholders and at any adjournments or postponements thereof, and vote in clauses favor of all directors nominated by the Board for election at any such meeting (a) through (i) above; or
(k) enter into discussionsincluding the Sherborne Designee, negotiationsas applicable), arrangements or agreements against any directors not nominated and recommended for election by the Board and in accordance with the Board’s recommendations with respect to any Person relating to proposals that may be the foregoing actions referred to in (a) through (i) abovesubject of stockholder action at such meeting; provided, however, that nothing contained Sherborne and any of the members of the Sherborne Group shall be permitted to vote in their sole discretion on any proposal with respect to an Extraordinary Transaction.
(c) Nothing in this Section 2.1 Agreement shall prevent, restrict, encumber, or be deemed to limit the exercise in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement good faith by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Sherborne Designee from performing its of such person’s fiduciary duties solely in such person’s capacity as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Nomination and Cooperation Agreement (Navient Corp), Nomination and Cooperation Agreement (Sherborne Investors LP)
Standstill. During Except as otherwise provided in this Agreement, without the period prior written consent of the Trustees (such periodor following the Distribution Time, the “Standstill Term”) commencing Board), the Stockholders and the Stockholder Designees shall not, and shall cause their Affiliates and controlled Associates not to, directly or indirectly (in each case, except as of the First Closing Date and continuing until the later of permitted by this Agreement):
(i) the second other than pursuant to Sections 1(a) and 1(b) of this Agreement, nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors are to be elected; (2ndii) anniversary initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(b) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire or otherwise beneficially own (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Second Closing DateTrust or TPL Corp generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Trust or TPL Corp (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in (i) Horizon having ownership or control of, or other beneficial ownership interest in, 23.5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Horizon Cap”), (ii) SoftVest having ownership or control of, or other beneficial ownership interest in, 4.0% or more, in the date on which aggregate, of the Investor ceases to have then-outstanding Sub-share Certificates or shares of the right to designate a director to Common Stock (the Board pursuant to Section 5, and “SoftVest Cap”) or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the date on which aggregate, of the Investor then-outstanding Sub-share Certificates or shares of the Common Stock (including SK ecoplant the “Mission Cap”, and SPVeach of the Horizon Cap, the SoftVest Cap and the Mission Cap, individually, an “Ownership Cap”); provided, however, that, subject to Section 3(c), in the event that the Trust or TPL Corp (A) acquires through share purchases Sub-share Certificates or shares of the Common Stock or (B) undertakes a reverse share split, and its Subsidiaries any of such actions reduces the number of securities of the Trust or TPL Corp outstanding and thereby increases the proportionate number of Sub-share Certificates or shares of Common Stock that a Stockholder has ownership or control of, or otherwise beneficially owns, to a proportion of Sub-share Certificates or shares of the Common Stock that is equal to or greater than the applicable Ownership Cap for such Stockholder (such event, a “Share Reduction Event”), then such Stockholder shall not be deemed to have acquired or otherwise beneficially own less an amount of Sub-share Certificates or shares of the Common Stock that is greater than five percent the number of shares permitted pursuant to such Stockholder’s applicable Ownership Cap (such amount of securities in excess of a Stockholder’s Ownership Cap, the “Excess Shares”) in violation of this Section 3(b) as a result of such Share Reduction Event; provided, further, that such Stockholder shall divest its Excess Shares within a reasonable time period (but in any event, within 30 calendar days of becoming aware of such Share Reduction Event) so that such Stockholder no longer has ownership or control of, or otherwise holds a beneficial ownership interest in, such Excess Shares;
(c) sell or transfer shares of Common Stock, other than in open market sale transactions where the identity of the purchaser or transferee is not known and in underwritten widely dispersed public offerings, to any Third Party that (i) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5.0%) % or more of the shares of Common Stock then issued outstanding at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and outstandingAssociates, has a beneficial or other ownership interest in the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any aggregate of 5.0% or more of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument outstanding at such time, in each case, unless such Third Party is a passive investor that gives the Investor the economic equivalent of ownership of an amount has not been a “reporting person” on a Schedule 13D and would not, in connection with purchasing or holding of securities of the Company TPL Corp, be required to file a Schedule 13D;
(a “Derivative”)d) (i) form, except, nothing join or in this Section 2.1(a) shall prevent any way participate in any group or prohibit the Investor from investing in a fund agreement of any kind with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting voting securities of the stockholders Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Company or propose any matter to be voted upon by the stockholders of the CompanyDistribution Time), or (ii) propose or nominate for election to the Board deposit any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for voting securities of the Company (if such offer Trust or proposal would, if consummated, result TPL Corp in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject subjecting any Trust or TPL Corp voting securities of the Company to any arrangement or agreement with respect to the voting thereof;
(e) seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Governance Documents;
(f) demand an inspection of any proxy (other than pursuant to this Agreement)the Trust’s or TPL Corp’s books and records;
(g) propose make any (i) public or private (other than to the Trustees or the Board) proposal with respect to or (ii) public statement or otherwise seek to encourage, advise or assist any mergerperson in so encouraging or advising with respect to, consolidationin each case: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, business combination(B) any change in the capitalization, dividend or share repurchase policy of TPL Corp, (C) any other change in the Trust’s or TPL Corp’s business, operations, strategy, management, governance, corporate structure, or other affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of TPL Corp to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) initiate, make, effect, seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist any (i) Extraordinary Transaction, (ii) material acquisition of any assets or businesses of the Trust, TPL Corp or any of either the Trust’s or TPL Corp’s subsidiaries, (iii) tender offer or exchange offer, purchase merger, acquisition, share exchange or other business combination involving any of the Company’s voting securities or any of the material assets or businesses, purchase of any securities businesses of the Company Trust or TPL Corp or any Derivativeof their subsidiaries, or any similar transaction involving the Company or (iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary material transaction with respect to the CompanyTrust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in each case without concert with others, to the prior written consent of the Board (Trust or TPL Corp that would reasonably be expected to require a transaction described in clauses public announcement or disclosure regarding any such matter;
(i) and (ii) that would result in a Change of Controlenter into any negotiations, is referred agreements or understandings with any Third Party with respect to as a “Business Combination”);
(h) act in concert with the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request foregoing, or propose to the Board otherwise take or the Company (or cause any action inconsistent with any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))the foregoing;
(j) publicly make or in any public announcement regardingway advance publicly any request or proposal that the Trust or the Board amend, modify or take waive any action that could require the Company to make a public announcement regarding, a potential Business Combination or any provision of the matters set forth in clauses (a) through (i) abovethis Agreement; or
(k) enter into discussionstake any action challenging the validity or enforceability of this Section 3 or this Agreement, negotiations, arrangements unless TPL Corp is challenging the validity or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveenforceability of this Agreement; provided, however, that (i) nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prevent the Stockholders or limit in any manner: Stockholder Designees from making (A) the Investor or any of its Affiliates from making confidentialfactual statement in response to a Legal Requirement, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) any communication to the Investor Designee from performing its duties as a member of the Board; Trust or TPL Corp, or (C) any private communication to investors or prospective investors in any of the Investor Stockholders or any of its Affiliates from exercising their respective rightsAffiliates, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementprovided that, in each case, such statement or communication (1) is based on publicly available information; (2) is not reasonably expected to be required to be publicly disclosed by any person and is understood by all parties to be confidential communication; and (3) is not made with an intent to circumvent any of the restrictions listed in accordance with paragraphs (a) through (k) of this Section 3 or Section 4; and (ii) the restrictions in this Section 3 shall not restrict the Stockholders or Stockholder Designees from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as the other stockholders of the Trust or TPL Corp or from participating in any such transaction that has been approved by the Trustees or the Board, as applicable, subject to the other terms hereof and thereof.of this Agreement. Nothing in this Agreement shall limit the exercise in good faith by any Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 2 contracts
Sources: Stockholders' Agreement (SoftVest, LP), Stockholders Agreement (Texas Pacific Land Trust)
Standstill. During The Shareholder hereby agrees that, for a period of one year from the period (such perioddate hereof, without the prior written consent of the Company, the “Standstill Term”) commencing as Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of the First Closing Date and continuing until the later of its Affiliates not to, directly or indirectly:
(i) the second acquire, publicly announce an intention to acquire, offer or propose to acquire, or agree to acquire (2nd) anniversary except, in any case, by way of the Second Closing Date, (ii) the date on which the Investor ceases stock dividends or other distributions or offerings made available to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) holders of the shares of any Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesgenerally), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any equity securities of the Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire beneficial ownership additional shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives in open market or privately-negotiated transactions as long as the Investor the economic equivalent Shareholder and its Affiliates, collectively, shall not, as a result of ownership such purchase or purchases, beneficially own in excess of an amount of securities 25% of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding shares of Common Stock;
(bii) make a tendermake, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) in any way participate, directly or indirectly, in any "solicitation" (i) seek to have called any meeting as such term is used in the proxy rules of the stockholders Commission as in effect on the date hereof) of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents (whether or propose not relating to the election or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Actremoval of directors), or seek to advise advise, encourage or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such securities, including term is used in the granting proxy rules of any proxy (other than the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to this Agreement)Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(giii) propose seek, propose, or make any public statement (iwhether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of the Company’s assets assets, sale or businesses, purchase of any securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Derivative, of its Affiliates or solicit or encourage any similar transaction involving the Company other Person to make any such public statement or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)proposal;
(hiv) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” as such terms are used in " (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to any Voting Securities, other than 63 groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or any securities its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the management, Board of Directors or policies of the Company;
(iviii) request seek, alone or propose to in concert with others, representation on the Board or of Directors of the Company or seek the removal of any member of the Board of Directors;
(ix) make any publicly disclosed proposal or enter into any discussion regarding any of its officersthe foregoing;
(x) publicly make any proposal, directorsstatement or inquiry, Affiliates employeesor publicly disclose any intention, attorneysplan or arrangement (whether written or oral) inconsistent with the foregoing, accountantsor publicly make or disclose any request to amend, financial advisors and other professional representatives), directly waive or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, Agreement or take any action that could require the Company to make a public announcement regarding, a potential Business Combination Certificate of Incorporation or any By-laws of the matters set forth in clauses (a) through (i) aboveCompany; or
(kxi) enter into discussionsany arrangements, negotiations, arrangements understandings or agreements (whether written or oral) with, or advise, finance or assist, any other Person in connection with any Person relating to of the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumberforegoing, or limit make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Standstill. During Armistice agrees that until the period Termination Date, it shall not, and shall cause its Affiliates and Associates and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (such periodcollectively, the “Standstill TermArmistice Affiliates”) commencing as of not to, directly or indirectly, without the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases make, engage in or in any way participate in any “solicitation” (as such term is used in the proxy rules of the Securities and purchases Exchange Commission (the “SEC”), but without regard to the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of Preemptive Right Shares1934, directly as amended (the “Exchange Act”)) of proxies, consents or indirectly, acquire beneficial ownership voting authorizations with respect to the election or removal of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities directors of the Company (or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “Derivative”)participant” (as such term is used in the proxy rules of the SEC) or assist any “participant” in any such solicitation of proxies, except, nothing in this Section 2.1(a) shall prevent consents or prohibit voting authorizations from the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsCompany’s stockholders;
(b) make a tenderencourage, exchange influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other public offer authorization to acquire vote any shares of the Company’s common stock, par value $0.001 per share (the “Common Stock and/or Common Stock EquivalentsStock”) (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(c) directly form, join, encourage, influence, advise, act in concert with or indirectly, in any way participate in any “group” (ias defined pursuant to Section 13(d) seek to have called any meeting of the stockholders of the Company Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Armistice Affiliates with respect to Voting Securities now or propose any matter to be voted upon hereafter owned by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)them;
(d) directly make or indirectly, encourage, accept be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”otherwise);
(e) directly make any request for a stockholder list or indirectlyfor any other Company materials, solicit proxies books or consents or propose or seek or become a participant in a solicitation (records under Section 220 of the Delaware General Corporation Law, as such terms are defined in Regulation 14A under the Exchange Act)amended, or seek other statutory or regulatory provisions providing for stockholder access to advise stockholder lists or influence any Person, with respect to voting of any securities of the CompanyCompany books and records;
(f) deposit make any securities statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company in a voting trust Company’s Affiliates, or subject any securities of the Company Company’s past, present or future employees, directors, managers or representatives, or take any action that would reasonably be expected to result in any arrangement such statement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)announcement being publicly made;
(g) propose (i) enter into any mergerdiscussions, consolidationnegotiations, business combination, tender agreements or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert understandings with any Third Party to take any action that Armistice is prohibited from taking pursuant to this Section 3;
(h) make any request or submit any proposal to amend or waive the terms of this Agreement, in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate each case which would reasonably be expected to result in a “partnership, limited partnership, syndicate, public announcement of such request or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;proposal; or
(i) request disclose any intention, plan, commitment or propose arrangement to do any of the foregoing. Notwithstanding anything in this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict Armistice from (i) communicating privately with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with stockholders of the Company and others in clauses a manner that does not otherwise violate this Section 3 or Section 4(b), or (aiii) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained has jurisdiction over Armistice. Nothing in this Section 2.1 3 or elsewhere in this Agreement shall preventbe deemed to, restrict, encumber, or limit in any manner: (A) the Investor , restrict any director’s ability to act consistently with his or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its her fiduciary duties as a member director of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Cooperation Agreement (Avalo Therapeutics, Inc.), Cooperation Agreement
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date Company Board, CD&R Fund and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DatePurchaser Parties shall not, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or knowingly indirectly, and shall use reasonable best efforts to cause their respective Affiliates not to (iii) the date on which the Investor either individually, or in concert with any other Person, or as a “group” (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%as such term is used in Section 13(d)(3) of the Exchange Act)):
(1) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any securities or direct or indirect rights to acquire any equity securities of the Company or any of its Affiliates, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock then issued and outstanding, or substantially all of the Investor (including SK ecoplant and assets or property of the SPV) Company and its Subsidiaries shall not do (but in any of the following, except as approved, invited or waived case excluding (1) any issuance by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)or options, except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange warrants or other public offer rights to acquire Common Stock and/or (or the exercise thereof) (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations and (2) the use of cash dividends received by the Purchaser Parties on the Preferred Stock to acquire shares of Common Stock Equivalents;
in open market purchases (c) directly or indirectly, (i) seek but only to have called any meeting the extent of the stockholders of such cash dividends paid by the Company or propose any matter to be voted upon by on the stockholders of the CompanyPreferred Stock), or (ii) propose or nominate for election to the Board any person whose nomination has not been approved extent permitted by a majority of the Board (excluding the Investor Designee, if anyapplicable Law);
(d2) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities than to effectuate the nomination and election of the Company Purchaser Designees pursuant to Section 4.10, make or in any way participate or engage in any “solicitation” of “proxies” (if such offer whether or proposal wouldnot relating to the election or removal of directors), if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s stockholders or initiate any arrangement stockholder proposal for action by the Company’s stockholders, or agreement other than with respect to the voting of such securitiesPurchaser Designees, including seek election to or to place a representative on the granting Company Board or seek the removal of any proxy (other than pursuant to this Agreement)director from the Company Board;
(g3) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company and its Subsidiaries, or businesses, purchase of any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate (except as a holder of Common Stock or Preferred Stock) in a merger, consolidation, division, acquisition or exchange of substantially all assets or equity, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act excluding Purchaser Designees, otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board management or the Company (Board or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Subsidiaries;
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses (a) through (i) above; orthis Section 4.13(b);
(k9) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.13(b), provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the foregoing actions referred Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(11) contest the validity of this Section 4.13(b) or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to in (a) through (i) aboveamend, waive or terminate any provision of this Section 4.13(b); provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.12 4.13(a) and the other Transaction Documents) or Transfer (subject to Section 4.9 and the other Transaction Documents) their shares of Preferred Stock or Common Stock, or limit in any manner: otherwise exercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (A2) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.11, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B3) the Investor ability of any Purchaser Designee from performing its duties to act in his or her capacity as a member of the Company Board; , including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Beacon Roofing Supply Inc)
Standstill. During So long as the period (such periodCompany is in compliance with its obligations under this Agreement, then unless approved in advance by the “Standstill Term”) commencing as Board of Directors of the First Closing Date and continuing until Company, each Holder agrees that neither it nor any of its Representatives acting on behalf of such Holder will, for a period ending immediately after the later of (i) the second (2nd) anniversary annual shareholders meeting of the Second Closing DateCompany in 2016 (and in all events no later than December 31, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 52016), and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases make any proposal to the Board of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders Directors of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company’s Representatives or any of the Company’s stockholders regarding, such or make any public announcement, proposal or offer or proposal is referred to as an (including “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (solicitation” of “proxies” as such terms are defined or used in Regulation 14A under of the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose offering (i) any merger, consolidation, business combination, merger, tender or exchange offer, purchase of the Company’s assets exchange offer or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring, recapitalization, restructuring, liquidation or other extraordinary similar transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to involving the Company or any securities of the Company;
(i) request or propose to the Board or its subsidiaries, except in each case solely in connection with contractual arrangements between MSKCC and the Company or its then existing subsidiaries, (or iii) any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor acquisition by MSKCC or any of its Affiliates from making confidentialof any of the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, nonpublic proposals or rights or options to acquire interests in any of the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, (iv) any proposal by MSKCC to seek representation on the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of Directors of the BoardCompany; or or
(Cb) form an Exchange Act Section 13(d) “group” with any third party to take any of the Investor or actions set forth in Section 4.1(a);
(c) in the case of MSKCC together with any of its Affiliates from exercising their respective rightsAffiliates, performing their respective obligations acquire (or otherwise consummating propose or agree to acquire), of record or beneficially, by purchase or otherwise, any equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementCompany, or rights or options to acquire interests in any of the Preferred Distributor Agreement, Company’s equity securities representing in each case, aggregate more than one percent (1%) of outstanding voting power in accordance with shares of the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Actinium Pharmaceuticals, Inc.), Investors’ Rights Agreement (Memorial Sloan-Kettering Cancer Center)
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any other than Permitted Purchases and purchases of Preemptive Right Sharesperson, directly individual or indirectlyentity, acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership in excess of 12% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companybusiness for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved or oppose the directors nominated by a majority of the Board (excluding the Investor Designeeprovided, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities that such nominees were not nominated in contravention of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(gc) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the Shareholder Group or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” in support of all of the nominees of the Board at any securities stockholder meeting;
(e) call or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(if) request publicly disclose, or propose to cause or facilitate the Board public disclosure (including, without limitation, the filing of any document or report with the Company (SEC or any other governmental agency or any disclosure to any journalist, member of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly the media or indirectlysecurities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or waiver this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Section 2.1 Agreement;
(including g) disparage the Company or any member of the Board or management of the Company, provided that this clause provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation or are subject to contractual provisions providing for confidential disclosure;
(h) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(i));) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Telecommunication Systems Inc /Fa/)
Standstill. During the term of his employment and for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) six months after the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive’s employment is terminated, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingExecutive shall not, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly or in concert with any other person, engage in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(ai) other than Permitted Purchases and purchases of Preemptive Right Sharespurchase, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companypurchase, or (ii) propose agree to purchase or nominate for election to the Board any person whose nomination has not been approved otherwise acquire, by means of a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combinationpurchase, tender or exchange offer, purchase business combination or in any other manner (including rights or options to acquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable for Common Stock of the Company, that would result in the Executive, the Executive’s assets affiliates, and the members of any “group” of persons with which the Executive or businesseshis affiliates are acting in concert beneficially owning, purchase in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) other than in his capacity as an officer or director of the Company, seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Derivativeof its affiliates, including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the vote of any similar transaction involving holder of voting securities of the Company Company; or
(iii) be employed by any person (other than NorthStar) that, directly or (iithrough its affiliates, engages in any of the foregoing. Notwithstanding anything in this Section 7(d) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Companycontrary, in each case without the prior written consent of the Board no action described above taken by NorthStar (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, whether directly or indirectly, formvoluntarily or involuntarily) shall be considered to be a violation of this Section 7(d) by Executive. Exercise of options, join or in any way participate in a “partnershipconversion of LTIP Units, limited partnership, syndicate, vesting and delivery of shares of Common Stock pursuant to equity or other group” awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in connection with or as such terms are used in the rules a result of the SEC Executive’s employment with respect to the Company or any securities service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to be in “play” through no act of the Company;
(i) request or propose Executive, the Executive will no longer be subject to the Board or the Company (or any limitations of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesSections 7(d), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 2 contracts
Sources: Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 12 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 2 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. During From the period date of this Agreement until the first-year anniversary hereof (such period, the “Standstill TermRestricted Period”), with respect to the Company, each Blackwells Party shall not, and shall cause its Affiliates and their respective principals, directors, members, general partners, officers, employees, consultants and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Datenot to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the U.S. Securities and Exchange Commission (the “SEC”), but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), involving the Company, of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage, advise or influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, (i) with respect to the voting or the giving or withholding of any proxy, consent or other authority to vote involving the Company or the taking of any other action with respect to such Person’s Voting Securities or (ii) in conducting any type of referendum, binding or non-binding, involving the Company (in each case, other than Permitted Purchases such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(c) form, join or participate in any way in any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with other Affiliates of Blackwells with respect to Voting Securities now or hereafter owned by them;
(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company (other than solely through the exercise of Voting Securities held by such Blackwells Party prior to the date of this Agreement and purchases (i) identified by such Blackwells Party in its public filings with the SEC prior to the date of Preemptive Right Sharesthis Agreement or (ii) identified by such Blackwells Party in its public filings made with the SEC on the date of this Agreement, to the extent such Voting Securities were specified in drafts of such filings provided by such Blackwells Party to the Company on the date of this Agreement prior to entry into this Agreement);
(e) sell, offer or agree to sell all or substantially all voting rights decoupled from the underlying Voting Securities held by any Blackwells Party or any of its Affiliates, directly or indirectly, acquire beneficial ownership through swap or hedging transactions or otherwise;
(f) make, or in any way participate with any other Person (other than (i) the voting of Common Stock and/or Common Stock Equivalents and/or Voting Securities held by any instrument that gives Blackwells Party prior to the Investor date of this Agreement and identified by such Blackwells Party in its public filings with the economic equivalent SEC prior to the date of ownership this Agreement and (ii) the receipt of an amount consideration on the same terms as other holders of securities of the Company (a “Derivative”securities), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyin any, or (ii) propose or nominate for election any proposal that would reasonably be expected to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeresult in any, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldoffer, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender recapitalization, restructuring, liquidation, dissolution or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation its subsidiaries or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly its or indirectly, form, join their securities or in any way participate in a “partnership, limited partnership, syndicate, assets; or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)make, directly or indirectly, any amendment proposal, either alone or waiver in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any such transaction;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of Blackwells, with respect to Voting Securities now or hereafter owned by them;
(h) (A) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, (B) seek, alone or in concert with others, the removal of any provision member of this Section 2.1 the Board, or (including this clause C) conduct a referendum of shareholders;
(i));) make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration by the Company’s shareholders;
(j) make any public announcement regardingrequest for stock list materials or other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to books and records;
(k) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any action of the actions expressly prohibited by this paragraph 4; provided, however, that could require for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation against the Company to make enforce the provisions of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a public announcement regardingRestricted Person, or bringing a responsive independent action against the Company should counterclaims be deemed insufficient to defend such Blackwells Party’s interests, (iii) responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (each, a potential Business Combination “Legal Requirement”) in connection with any legal proceeding (the “Legal Proceeding”) if such Legal Proceeding has not been initiated by, or on behalf of, or at the suggestion of, the Blackwells Parties; provided, further, that in the event any of the Blackwells Parties or any of the matters set forth in clauses Blackwells Representatives (aas such term is defined below) through (i) above; or
(k) enter into discussionsreceives any Legal Requirement, negotiations, arrangements such Blackwells Parties or agreements with any Person relating Blackwells Representatives shall give prompt written notice of such Legal Requirement to the foregoing actions referred to in (a) through (i) aboveCompany; provided, however, that nothing contained in this Section 2.1 clause (k) shall prevent, restrict, encumber, or limit in not require any manner: (A) the Investor or Blackwells Party to opt out of any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by class action lawsuits against the Company after the Second Closing Date that it has entered into not initiated in violation of this clause (k) (“Class Actions”) and to which such Blackwells Party is a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties party solely as a member result of the Board; Blackwells Parties’ ownership of Voting Securities during the class period applicable to such Class Actions;
(l) publicly disclose any intention, plan or arrangement inconsistent with any provisions of this paragraph 4;
(Cm) enter into any negotiations, agreements or understandings with any third party to take any action that any Blackwells Party is prohibited from taking pursuant to this paragraph 4; or
(n) make any request or submit any proposal to amend or waive the Investor or any terms of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, case which would reasonably be expected to result in accordance with the terms hereof and thereofa public announcement of such request or proposal.
Appears in 2 contracts
Sources: Letter Agreement (Blackwells Capital LLC), Letter Agreement (Supervalu Inc)
Standstill. During the period commencing with the Effective Date and ending August 1, 2023 (such period, the “Standstill TermPeriod”) commencing as of ), the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Executive will not, and will cause each of his Affiliates (iii) the date on which the Investor or any other person or entity (including SK ecoplant and SPVany Associate) and its Subsidiaries beneficially own less than five percent (5.0%acting on behalf of or at the Executive’s direction or otherwise with the Executive’s encouragement or support) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, in any manner (including by assisting, encouraging or participating with others to), alone or in concert with others (in each case, except as approved by a resolution of the Board or any committee thereof empowered to take such action):
(a) acquire, offer, seek or propose to acquire, or agree to acquire, ownership (beneficial or otherwise, and in any manner) of any debt or equity securities of the Company (including Common Stock) or rights or options to acquire beneficial such ownership or securities convertible or exchangeable into such ownership (including Redeemable Warrants), in each case excluding securities of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount Company issued as a dividend or otherwise in respect of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent otherwise owned by any such person or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany;
(b) make a tenderacquire, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyoffer, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyacquire, or agree to acquire, ownership (iibeneficial or otherwise, and in any manner) propose of any instruments, real or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board synthetic, that give Executive or his Affiliates or Associates (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person person or group (an “Offeror”entity acting on behalf of or at the Executive’s direction) for securities of the Company (if such offer right to vote or proposal would, if consummated, result in a Change of Control of direct the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any , in each case excluding securities of the Company issued as a dividend or otherwise in a voting trust or subject any respect of securities of the Company to otherwise owned by any arrangement or agreement with respect to the voting of such securities, including the granting of person and excluding any proxy (other than pursuant to this Agreement)Earnout Shares and/or Adjustment Escrow Stock;
(gc) propose (i) or effect any tender or exchange offer, merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board Company or its subsidiaries;
(a transaction described in clauses d) (i) and make or participate in any “solicitation” (as defined under the Exchange Act) of proxies or consents with respect to the election or removal of directors or any other proposal (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation); (ii) that would result in a Change seek or knowingly encourage election to or representation on the Board, or nominate or recommend the nomination of Controlany candidate to the Board, is referred or the removal of any member of the Board, or call or seek to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orcall, directly or indirectly, any special meeting of shareholders of the Company for any reason whatsoever; (iii) make any stockholder proposal; (iv) seek or advise or influence any person or entity with respect to the voting of any securities of the Company; (v) engage in any course of conduct with the purpose of causing shareholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote or challenging the policies of the Company; or (vi) otherwise act, alone or in concert with others, to seek to control or influence the management, Board, policies or affairs of the Company;
(e) form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC Exchange Act) with respect to the Company or any securities of the Company (other than (i) any group previously identified prior to the date hereof in the Schedule 13D filed by the Executive and (ii) the Irrevocable Proxy described in Section 16(k));
(f) seek to change the determination or direction of the basic decisions of the Company, the present capitalization or dividend policy of the Company, the Company’s organizational documents or take any other actions which may impede the acquisition or control of the Company by any person or entity, or otherwise take any action inconsistent with the ownership of securities “solely for the purpose of investment”;
(g) engage in any course of conduct causing the Company’s securities to become eligible for termination of registration pursuant to Section 12(g) of the Exchange Act;
(h) make a request (public or otherwise) that the prohibitions set forth in this Section 16 be waived or that the Company take any action which would permit the Executive or his Affiliates or Associates to take any of the actions prohibited by this Agreement;
(i) request publicly disclose (whether via social media platform or propose to otherwise) any intention, plan or arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));foregoing; or
(j) make knowingly encourage or assist any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or other Person in undertaking any of the matters set forth in clauses (a) through (i) above; orforegoing.
(k) enter into discussionsIn addition, negotiationsduring the Standstill Period, arrangements the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or agreements with any Person relating to by proxy at each meeting of the foregoing actions referred to in Company’s stockholders (a“Stockholder Meeting”) through and either (i) above; provided, however, that nothing contained vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) (the “Remaining Executive Shares”) at such Stockholder Meeting in this Section 2.1 shall prevent, restrict, encumberfavor of any proposal recommended by the Board, or limit (ii) abstain from voting the Remaining Executive Shares at such Stockholder Meeting. Executive acknowledges and agrees that his attendance at each Stockholder Meeting shall not be, nor be deemed to be, “in any manner: (A) protest”. In addition, simultaneously with the Investor or any execution of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture AgreementExecutive shall execute and deliver to the Company and the Board an Irrevocable Proxy (in the form attached hereto as Exhibit C) irrevocably granting the Board the power and authority to represent the Executive at any Stockholder Meeting and (aa) vote the Remaining Executive Shares in favor of any proposal advanced by the Board, or (bb) abstain from voting the Preferred Distributor AgreementRemaining Executive Shares, such Irrevocable Proxy to become effective only in each casethe event that and for so long as the Executive fails to (xx) otherwise appear in person or by proxy at any Stockholder Meeting or (yy) vote the Remaining Executive Shares in the manner set forth in this Section 16(k).
(l) If a Change in Control occurs prior to the end of the Standstill Period, then the Executive’s obligations under this Section 16 shall cease to apply as of the date of the consummation of such Change in accordance with the terms hereof and thereofControl.
Appears in 2 contracts
Sources: Settlement Agreement (Electric Last Mile Solutions, Inc.), Settlement Agreement (Electric Last Mile Solutions, Inc.)
Standstill. During From the period date of this Agreement until the expiration of the Commitment Period, each of the Investors shall not, and shall cause its Affiliates (such periodcollectively, the “Standstill TermRestricted Persons”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateshall instruct their respective Representatives not to, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases engage in any “solicitation” (as such term is used in the proxy rules of Preemptive Right Shares, directly the SEC) of proxies or indirectly, acquire beneficial ownership consents with respect to the election or removal of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities directors of the Company (or become a “Derivative”), except, nothing participant” (as such term is used in this Section 2.1(athe proxy rules of the SEC) shall prevent in any such solicitation of proxies or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsconsents;
(b) make (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board, (iii) conduct a tenderreferendum of stockholders of the Company or (iv) seek to call, exchange request the call of or join with any other public offer stockholder in a request to acquire Common Stock and/or Common Stock Equivalentscall, a special meeting of the Company’s stockholders;
(c) directly make or indirectly, be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act) relating to the Company;
(d) encourage or advise any Person or assist any Person in encouraging or advising any other Person (i) seek with respect to have called the giving or withholding of any meeting proxy or consent relating to, or other authority to vote, any Voting Securities, or (ii) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with management’s recommendation in connection with a particular matter, in the case of each of (i) and (ii), solely with respect to the election or removal of directors;
(e) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of the stockholders Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with the other Investors and Affiliates of the Company Investors with respect to Voting Securities;
(f) acquire, or propose offer, seek or agree to acquire, by purchase or otherwise, or direct any matter to be voted upon by Third Party in the stockholders acquisition of, any Voting Securities of the Company, or (ii) propose engage in any swap or nominate for election hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Board any person whose nomination has not been approved by a majority Investors having beneficial ownership of more than 10.0%, or economic exposure to more than 10.0%, of the Board (excluding the Investor Designee, if any)outstanding Company Shares;
(dg) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in enter into a voting trust or subject any securities of the Company to any trust, arrangement or agreement with respect to the any Voting Securities, or subject any Voting Securities to any voting of such securitiestrust, including the granting of any proxy (arrangement or agreement, other than pursuant to (i) this Agreement), (ii) solely with the other Investors or Affiliates of the Investors, or (iii) granting proxies to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting;
(gh) propose except as set forth herein, make any public proposal with respect to (i) any merger, consolidation, business combination, tender change in the number or exchange offer, purchase term of directors or the Company’s assets or businesses, purchase filling of any securities of vacancies on the Company or any DerivativeBoard, or any similar transaction involving the Company or (ii) any recapitalizationwaiver, restructuring, liquidation amendment or other extraordinary transaction with respect modification to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities Governing Documents of the Company;
(i) request grant any proxy, consent or propose other authority to vote with respect to the Board election of directors other than to the named proxies included in the Company’s proxy card for an annual meeting;
(j) engage in, or the Company (offer to or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to engage in, directly or indirectly, any amendment transaction (including through swap or waiver hedging transactions or otherwise) that (i) reduces in any material respect the economic risk of ownership of any Company Shares owned by it or the other Restricted Persons or (ii) decouples the economic risk of ownership from the underlying Voting Securities owned by it or the other Restricted Persons;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction with respect to any security) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Voting Securities;
(l) either alone or in concert with others, directly or indirectly, make any tender offer, exchange offer or be a party to any merger, consolidation, acquisition, business combination, purchase of a division, purchase of substantially all of the assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company or any of its subsidiaries or its or their respective securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Restricted Persons or their Representatives from tendering shares, receiving payment for shares or otherwise participating in any such transaction initiated by a Third Party on the same basis as other stockholders of the Company or from participating in any such transaction that has been approved by the Board);
(m) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 8 other than to enforce the provisions of this Agreement and to defend (and/or assert counterclaims in) any litigation in which any Restricted Person is a defendant;
(n) make any request for stock list materials or other books and records of the Company under Section 2-512 of the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(o) make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) in support of any solicitation described in clauses (a), (b), (c) or (m) above;
(p) publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 2.1 (including this clause (i));paragraph 8; or
(jq) make any public announcement regardingrequest or submit any proposal to amend or waive the terms of this Agreement, or take any action that could require the Company in each case which would reasonably be expected to make result in a public announcement regardingof such request or proposal. Notwithstanding anything to the contrary in this Agreement, a potential Business Combination nothing in this paragraph 8 shall prohibit or restrict the Investors from: (i) communicating privately with the Board or any of the matters set forth Company’s officers regarding any matter in clauses a manner that does not otherwise violate this Section 8; (aii) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements taking any action necessary to comply with any Person relating to the foregoing actions referred to in (a) through (i) above; providedlaw, however, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that nothing contained in this Section 2.1 shall prevent, restrict, encumberhas, or limit in any manner: (A) may have, jurisdiction over the Investor Investors or any of their respective Affiliates in a manner that does not otherwise violate this paragraph 8; or (iii) communicating with its investors in quarterly or annual letters provided such communications are subject to standard confidentiality obligations. The Investors acknowledge and agree that they shall be liable for any breach by their respective Affiliates from making confidentialor Representatives of any of the terms of this Agreement applicable to such Representatives. In addition, nonpublic proposals the Company agrees to provide the Investors, upon the Investors’ reasonable request, with the same degree, type and frequency of access to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member and members of the Board; or (C) Company’s senior management that is customarily provided to other stockholders with similarly sized shareholdings in the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 2 contracts
Sources: Letter Agreement (PHH Corp), Letter Agreement (EJF Capital LLC)
Standstill. During From and after the period (such periodClosing, Sponsor agrees that, unless specifically requested or approved in writing in advance by the “Standstill Term”) commencing as Newco on behalf of the First Closing Date Newco Board, none of Sponsor or any of its Representatives acting on its behalf will, at any time during such period as Sponsor has any Sponsor Designee on the Newco Board and continuing until for a subsequent period expiring on the later earlier of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyone year thereafter, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority Sponsor and its Affiliates owning less than two percent (2%) of the Board then outstanding shares of Newco Common Stock (excluding the Investor Designeeor, if anyat any time during such period, assist, advise, act in concert or participate with or encourage others to);
(d) , directly or indirectly: (a) publicly offer to enter into, encourageor publicly propose, accept or support a tenderany merger, exchange business combination, recapitalization, restructuring or other offer extraordinary transaction with Newco or any direct or indirect subsidiary thereof (except any non-public proposal by to the Newco Board that would not require Newco, Sponsor or any other Person to make any public announcement or group other disclosure with respect thereto); (an “Offeror”b) for securities initiate any stockholder proposal or the convening of the Company a stockholders’ meeting of or involving Newco or any direct or indirect subsidiary thereof; (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”);
(ec) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 14a-1 under the Exchange Act), whether or seek not such solicitation is exempt pursuant to advise or influence any PersonRule 14a-2 under the Exchange Act, with respect to voting any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of Newco or any securities convertible into or exchangeable or exercisable for (in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act; (d) otherwise publicly seek or propose to influence, advise, change or control the management, board of directors, governing instruments, affairs or policies of the Company;
, or any direct or indirect subsidiary thereof; (fe) deposit enter into any securities of the Company in a voting trust discussions, negotiations, agreements, arrangements or subject understandings with any securities of the Company to any arrangement or agreement other person with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction matter described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in the foregoing clauses (a) through (gd) aboveor form, orjoin or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) to vote, acquire or dispose of any securities of Newco or any of its subsidiaries; or (f) make any public disclosure, or take any action, that would require Newco, Sponsor or any other Person to make any public announcement or other disclosure with respect thereto. Notwithstanding the foregoing, the restrictions set forth in this Section 14 shall not limit, restrict or prohibit (1) any acquisition, directly or indirectly, formby purchase or otherwise, join of any securities or direct or indirect rights or options to acquire any securities (including any derivative securities or contracts or instruments in any way participate in related thereto) of Newco, (2) the service of any Sponsor Designee, and seeking to obtain the election of any Sponsor Designee, as a “partnership, limited partnership, syndicatedirector of Newco pursuant to Section 4, or other group” as such terms are used in (3) any confidential, non-public discussions with or communications or proposals to management or the rules of the SEC with respect to the Company Newco Board by Sponsor or its Representatives, including any Sponsor Designee, that would not require Newco, Sponsor or any securities of the Company;
(i) request or propose other Person to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements other disclosure with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofrespect thereto.
Appears in 1 contract
Sources: Sponsor Letter Agreement (Duddell Street Acquisition Corp.)
Standstill. During Until the period (such periodTermination Date, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Engaged Group shall not, and (iii) shall cause each of its Affiliates and Associates not to, directly or indirectly, in any manner, alone or in concert with others, in each case without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived prior written waiver authorized by the Company or the Board, or as contemplated by this Agreement:
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other than Permitted Purchases group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or other Synthetic Equity Interests, or otherwise (the taking of any such action, an “Acquisition”), ownership (including beneficial ownership) of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities) such that after giving effect to any such Acquisition, the Engaged Group or any of its Affiliates and purchases of Preemptive Right SharesAssociates owns, directly or indirectly, in the aggregate, in excess of 9.9% of any class or series of Voting Securities or possess economic exposure to more than 14.9% of any class or series of Voting Securities (including notional shares associated with Synthetic Equity Interests), (ii) acquire, cause to be acquired or offer, seek or agree to acquire, whether by purchase or otherwise, directly or indirectly, any interest in any indebtedness of the Company or (iii) acquire, cause to be acquired or offer, seek or agree to acquire, directly or indirectly, ownership (including beneficial ownership) of any asset or business of the Company or any right or option to acquire beneficial ownership any such asset or business from any person, in the case of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of this clause (iii), other than securities of the Company permitted by the foregoing clause (a “Derivative”i), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make except as otherwise expressly provided in Section 1, (i) nominate, give notice of an intent to nominate, or recommend for nomination a tenderperson for election to the Board or take any action in respect of the removal of any director, exchange (ii) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director, (iii) submit, or seek or knowingly encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, initiate, or knowingly encourage or participate in any request, to call a Stockholder Meeting or to act by written consent, (v) seek to amend any provision of the Charter, the Bylaws or other governing documents of the Company (each as may be amended from time to time), (vi) make any proposal regarding a change in the number or identity of directors of the Company or any change to the Company’s executive officers, or (vii) take any action similar to the foregoing with respect to any subsidiary of the Company; provided, however, that nothing in this Agreement shall prevent the Engaged Group or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the Company’s 2026 annual meeting of stockholders (the “2026 Annual Meeting”) so long as such actions do not create a public offer disclosure obligation for the Engaged Group or the Company and are undertaken on a basis reasonably designed to acquire Common Stock and/or Common Stock Equivalentsbe confidential and in accordance in all material respects with the Engaged Group’s normal practices in the circumstances;
(c) directly solicit any proxy, consent or indirectlyother authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (ias such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) seek in, initiate, or knowingly assist, advise, encourage or influence any person in, any solicitation of any proxy, consent or other authority to have called vote any meeting of Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the stockholders of Board’s recommendation in connection with such matter); provided, however, that the Company or propose foregoing shall not restrict the Engaged Group from stating how it intends to vote and the reasons therefor on any matter to be voted upon by Extraordinary Transaction that has been publicly submitted for the stockholders approval of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)’s stockholders;
(d) directly or indirectly(i) grant any proxy, encourage, accept or support a tender, exchange consent or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred authority to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, vote with respect to voting of any securities of the Company;
matters or (fii) deposit or agree or propose to deposit any securities of the Company in a any voting trust or similar arrangement, or subject any securities of the Company to any agreement or arrangement or agreement with respect to the voting of such securitiessecurities (including a voting agreement or pooling arrangement), including the granting of any proxy (other than pursuant to this Agreement);
(gA) propose depositing securities in a customary brokerage accounts, margin accounts, prime brokerage accounts or similar accounts (i) any merger, consolidation, business combination, tender or exchange offer, purchase of in each case so long as the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction Engaged Group retains control with respect to the securities deposited in such accounts), (B) granting any proxy, consent or other authority to vote to the Company’s proxy holders consistent with the recommendation of the Board, and (C) granting any proxy, consent or other authority to vote in any solicitation in connection with any matter for which the Engaged Group retains voting discretion pursuant to, and in accordance with, Section 2;
(e) advise or knowingly encourage, assist or influence any person, or direct any person in encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no,” or similar campaign), in each case other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter or consistent with the Engaged Group’s obligations set forth in Section 2 with respect to an Extraordinary Transaction;
(f) without the prior written consent approval of the Board (a transaction described Board, separately or in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert conjunction with any Third Party other person in which it is or proposes to take be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly propose, suggest or recommend, or participate in or effect, any action in clauses (a) through (g) above, or, directly Extraordinary Transaction or indirectly, form, join initiate or knowingly encourage any potential acquiror in any way participate in a “partnershipsuch activity, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC including making any outbound calls with respect to an Extraordinary Transaction; provided, that the Engaged Group shall notify the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 inbound inquiries it receives with respect to any Extraordinary Transaction within three (including this clause (i));
(j3) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovedays; provided, however, that nothing contained in this Section 2.1 3 shall preventbe interpreted to prohibit the Engaged Group from (i) proposing, restrictsuggesting or recommending any such transaction privately to the Company so long as any such action is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, encumberthe Engaged Group or any other person or (ii) tendering shares, receiving consideration or other payment for shares, or limit otherwise participating in any manner: publicly announced Extraordinary Transaction on the same basis as other stockholders of the Company;
(Ag) form, join, encourage the Investor formation of, or in any way participate in any partnership, limited partnership, syndicate or group (within the meaning of its Affiliates from making confidentialSection 13(d)(3) of the Exchange Act) with respect to any Voting Securities (other than a group that includes all or some of the members of the Engaged Group, nonpublic proposals but does not include any other entities or persons that are not members of the Engaged Group as of the date hereof; provided, however, that nothing herein shall limit the ability of an Affiliate of the Engaged Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement);
(h) make or publicly advance any request or proposal to amend, modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement; provided, however, that the Engaged Group may make confidential requests to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member to amend, modify or waive any provision of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, which the Purchase Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person;
(i) make a request for a list of the Company’s stockholders or for any books and records of the Company pursuant to Section 220 of the DGCL or otherwise;
(j) enter into or acquire any Short Interests or otherwise engage in any short selling of any of the Company’s securities, in each case that would result in the Engaged Group ceasing to hold a Net Long Position in the Company;
(k) knowingly transfer any Common Stock or other Voting Securities of the Company to (i) any Activist Investor or (ii) any Third Party who, as a result of such transfer, will beneficially own 5% or greater of the issued and outstanding shares of Common Stock or other class of Voting Securities of the Company (excluding passive institutional investors that are Schedule 13G filers and represent to the Engaged Group that they have no intention to file a Schedule 13D with respect to the Company); or
(l) enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage, Joint Venture assist, solicit, seek, or seek to cause any person to undertake any action inconsistent with this Section 3. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 3 shall not be deemed to restrict the Engaged Group from: (i) communicating privately with the Board or the Company’s Chief Executive Officer, Chief Financial Officer, General Counsel or Head of Investor Relations (and any other executive officer that the Chief Executive Officer or General Counsel authorizes the Engaged Group to privately communicate with following the Engaged Group’s request) regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure by the Company, the Engaged Group or any person, (ii) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Agreement, or (iii) making any public disclosure necessary to comply with any Legal Requirement (as defined below) so long as such Legal Requirement did not result from any violation of this Agreement or other voluntary action by the Preferred Distributor AgreementEngaged Group. Furthermore, for the avoidance of doubt, nothing in each case, this Agreement shall be deemed to restrict in accordance with any way the terms hereof and thereofNew Director in the exercise of his or her fiduciary duties under applicable law as a director of the Company.
Appears in 1 contract
Standstill. During the period Standstill Term each Investor and FF Beneficial Investor and their respective Affiliates (such periodother than the FF Investor) (collectively, the “Standstill TermParties”) commencing as shall not (and each Investor (other than the FF Investor) and the FF Beneficial Investor shall cause its Affiliates not to), without the prior written consent of the First Closing Date and continuing until the later Board of Directors (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%or any committee thereof) of the shares of Common Stock then issued and outstandingCompany, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acquire beneficial ownership more than one percent (1%) of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent class or series of ownership of an amount of any equity or convertible debt securities of the Company or any of its subsidiaries (a “Derivative”whether by purchase, business combination, merger, consolidation, share exchange, joint venture or otherwise); provided, however, notwithstanding the foregoing, each Investor (together with its Affiliates) and the FF Beneficial Investor (together with its Affiliates), exceptin each case, nothing may acquire securities of the Company in this regular brokerage transactions on the public securities market, such that when taken together with the securities purchased pursuant to the Purchase Agreement, such entity beneficially owns (within the meaning of Section 2.1(a13(d)(1) shall prevent of the Exchange Act) up to 9.9% of any class or prohibit series of any equity or convertible debt securities of the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsCompany;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents with respect to securities of the Company or initiate any stockholder proposal with respect to the Company;
(c) seek to advise, control or influence the management, Board of Directors or policies of the Company or any of its subsidiaries (other than communications with the Company’s management with respect to the Company’s business in the ordinary course), or seek to advise or influence any Person, with respect to voting take action for the purpose of any securities convening a stockholders meeting of the Company;
(fd) deposit make any securities proposal or any public announcement (including, for the avoidance of doubt, indirectly by means of communication with the Company in press or media) relating to a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any offer for securities of the Company or any Derivativeof its subsidiaries or relating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation, restructuring, recapitalization, or any similar transaction involving the Company or (ii) its subsidiaries, or take any recapitalization, restructuring, liquidation or other extraordinary transaction with respect action that might require the Company to the Company, in each case without the prior written consent make a public announcement regarding any of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)foregoing;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) of the SEC with respect to Exchange Act for the purpose of acquiring, holding, voting or disposing of securities of the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and subsidiaries or taking any other professional representatives), directly actions restricted or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in prohibited under clauses (a) through (id) aboveof this Section 3, or take any steps in connection therewith; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Sources: Investor Agreement (TESARO, Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases ▇▇▇▇▇▇▇ Global agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(bi) make a tenderengage in, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, any “solicitation” (ias defined in Rule 14a-l of Regulation 14A) seek to have called any meeting of the stockholders of the Company proxies (or propose any matter to be voted upon by the stockholders of the Company, written consents) or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or directly or indirectly recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any securities withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of stockholders) or grant a proxy, consent or other authority with respect to the voting of the CompanyCommon Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(fii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of ▇▇▇▇▇▇▇ Global to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iii) deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of ▇▇▇▇▇▇▇ Global and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any proxy directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders (other than pursuant to this Agreementsuch encouragement, support or influence that is consistent with Company’s management or the Board’s recommendation in connection with such matter);
(gx) propose other than through action at the Board by the New Director acting in his capacity as a director of the Company, seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(ixi) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase purchase, sale or transfer of the Company’s assets or businessessecurities, purchase of any securities of the Company dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent its subsidiaries, its Affiliates or its business(es), whether or not any such transaction involves a change of control of the Board Company (a transaction any of the transactions or events described in clauses this subsection (i) and (ii) that would result in a Change of Controlxii), is referred to as a “Business CombinationTransaction”);
(hxii) act in concert with any Third Party acquire, announce an intention to take any action in clauses (a) through (g) aboveacquire, oroffer or propose to acquire, or agree to acquire, directly or indirectly, formby purchase or otherwise, join or in beneficial ownership of any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used Common Stock of the Company representing in the rules aggregate (among ▇▇▇▇▇▇▇ Global and its Affiliates and Associates) in excess of 15% of the SEC Company’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by ▇▇▇▇▇▇▇ Global on the date of this Agreement);
(xiii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(xiv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 3(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any securities Transaction that has been approved by a majority of the Board and has been announced by the Company;, ▇▇▇▇▇▇▇ Global from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies consistent with the Board’s recommendation in connection with such matter.
(b) As used in this Agreement:
(i) request the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include (A) any person that is a publicly held corporation or propose to organization and is an Affiliate or Associate solely by reason of the Board fact that a principal or representative of ▇▇▇▇▇▇▇ Global serves as a member of the Company board of directors or similar governing body of such corporation or organization, (B) any principal or representative of ▇▇▇▇▇▇▇ Global solely in its capacity as a member of the board of directors or similar governing body of a publicly held corporation or organization, or (C) any corporation or organization that is an Associate of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)a person solely because such person, directly or indirectly, any amendment is the beneficial owner of 10% or waiver more of any provision class of this Section 2.1 (including this clause (i))equity securities of such corporation or organization and is not an Affiliate of such person;
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Sources: Board Composition Agreement (Career Education Corp)
Standstill. During The Investor Parties agree that until the period date that is six (such period, 6) months after the date that the 10% Beneficial Ownership Requirement is no longer satisfied (the “Standstill TermExpiration Date”) commencing as ), without the prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingBoard, the Investor (including SK ecoplant Parties will not, directly or indirectly, and the SPV) and its Subsidiaries shall will cause their Affiliates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, directly offer or indirectlyseek to acquire, agree to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or or make a proposal to acquire, by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of equity securities or direct or indirect rights to acquire any equity securities of the Company (a “Derivative”)Company, exceptany securities convertible into or exchangeable for any such equity securities, nothing any options or other derivative securities or contracts or instruments in this Section 2.1(a) shall prevent or prohibit any way related to the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsprice of shares of Common Stock;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
in any way encourage or participate in any “solicitation” of “proxies” (c) directly whether or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the Exchange Act)rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to any arrangement or agreement with respect to place a representative on the voting of such securities, including the granting of any proxy Board (other than the Investor Director pursuant to this Agreementthe nomination rights provided herein) or seek the removal of any director from the Board (other than the Investor Director pursuant to the director removal rights provided herein);
(gc) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (i) in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the Company’s assets assets, properties or businesses, purchase of any securities of the Company or any DerivativeSubsidiary of the Company, or any similar other extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent Subsidiary of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the Companyforegoing;
(id) request other than with respect to any Investor Director acting in his or propose her capacity as a member of the Board, otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the Board management, board of directors or policies of the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))Subsidiaries;
(je) make any public announcement regardingproposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing;
(g) take any action that could would require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses this Section 4.06;
(ah) through enter into any agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing;
(i) aboverequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 4.06; provided that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.06, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(kj) enter into discussionscontest the validity of this Section 4.06 or make, negotiationsinitiate, arrangements take or agreements with participate in any Person relating demand, Action (legal or otherwise) or proposal to the foregoing actions referred to in (a) through (i) aboveamend, waive or terminate any provision of this Section 4.06; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 4.06 will limit in any manner: (A1) the Investor Parties’ ability to vote (subject to Section 4.10), Transfer or Hedge (subject to Section 4.07), convert shares of Series A Preferred Stock into Common Stock (subject to Section 6 of the Certificate of Designations), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of its Affiliates from making confidentiala foreclosure thereunder, nonpublic proposals privately make and submit to the Company and/or the Board for any proposal that is intended by the Investor Parties to be made and submitted on a transaction involving a Business Combination following the non-publicly disclosed or announced basis (and would not reasonably be expect to require public announcement disclosure by any Person), participate in rights offerings made by the Company after to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Second Closing Date Company held by the Investor Parties, tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer (subject to Section 4.07), effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights under its Common Stock or Series A Preferred Stock that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; are not the subject of this Section 4.06 or (B2) the ability of the Investor Designee from performing its Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”a) commencing RCF agrees that effective as of the First Closing Date date of this Agreement and continuing until the later Termination Date, neither the RCF Group nor any of its Affiliates, principals, directors, general partners, officers, employees, members, agents or representatives, will, acting alone or "jointly or in concert" (within the meaning of applicable securities laws) with any other Person, unless specifically consented to in writing by the Board, directly or indirectly:
(i) make, or induce any person to make, any unsolicited take-over bid, or any other unsolicited merger or unsolicited going-private transaction involving the second (2nd) anniversary of the Second Closing Date, Company; or
(ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5engage in, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardparticipate in, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesin any way initiate, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation "solicitation" (as such terms are term is defined in Regulation 14A under the Exchange Act), CBCA and in any applicable securities laws) of proxies or seek to advise or influence any Personconsents, with respect to the voting of any securities of the Company;; or
(fiii) initiate, propose or otherwise "solicit" (as such term is defined in the CBCA) securityholders of the Company to vote any securities of the Company on any matter; or
(iv) deposit any securities of the Company in into a voting trust trust, or subject any securities of the Company to any agreement or arrangement or agreement with respect to the voting of such securities, including or enter into any other agreement or arrangement having similar effect to which, in each case, a Person who is not an Affiliate of the granting of any proxy (other than pursuant to this Agreement);RCF Group is a party; or
(gv) propose seek, alone or jointly or in concert with others, (i) any merger, consolidation, business combination, tender to requisition or exchange offer, purchase call a meeting of the shareholders of the Company’s assets , (ii) to obtain representation on, or businesses, purchase nominate or propose the nomination of any securities candidate for election to, the Board, other than as expressly provided in this Agreement, or (iii) to effect the removal of any member of the Board or otherwise alter the composition of the Board, other than as expressly provided in this Agreement; or
(vi) submit, or induce any person to submit, any shareholder proposal pursuant to Section 137 of the CBCA; or
(vii) commence, encourage or support any derivative action in the name of the Company or any Derivativeof its Affiliates, or any similar transaction involving action or proceeding against the Company or any of its Affiliates or any of its or their current or former officers or directors (iicollectively, the "Subject Parties"); provided that nothing in this Section 6(a)(vii) will prevent, limit or restrict the RCF Group from responding to any recapitalizationsuch action or proceeding commenced against the RCF Group by any of the Subject Parties or taking any action to enforce the terms of this Agreement; or
(viii) enter into any discussions, restructuring, liquidation agreements or other extraordinary transaction understandings with any Person with respect to the Company, or in each case without the prior written consent contemplation of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlforegoing, is referred to as a “Business Combination”);
(h) act in concert with or advise, assist, support or encourage any Third Party person to take any action in clauses inconsistent with the foregoing; or
(aix) through (g) abovemake any public disclosure of any consideration, orintention, directly plan or indirectly, form, join or in arrangement inconsistent with any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect foregoing, including any private request to the Company amend, waive or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action Agreement that could would require the Company to make a public announcement regardingdisclosure.
(b) The restrictions in this Section 6(a) shall terminate automatically upon any material breach of this Agreement by the Company (including, without limitation, a potential Business Combination breach of Section 2 or Section 3, as applicable, or a failure to issue the Press Release in accordance with Section 9) upon five (5) business days' written notice by RCF to the Company if such breach has not been cured within such notice period. Notwithstanding the foregoing provisions of this Section 6(a), the parties acknowledge and agree that the provisions of Section 6(a) will not limit in any respect RCF's ability to: (i) communicate privately with the Board or any officers of the Company with respect to any of the actions, activities, or matters set forth in clauses otherwise restricted by Section 6(a), or (aii) through (i) above; or
(k) vote or enter into discussionsa support agreement in respect of a Change of Control Transaction, negotiationsprovided the RCF Group has not committed a material breach of its obligations under this Section 6(a). For certainty, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 6(a) shall preventprevent the RCF Group from selling, restrictpledging, encumberpurchasing, tendering, or limit undertaking any other ordinary course market transaction in any manner: (A) securities of the Investor Company, including with respect to some or any all of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement Common Shares beneficially owned by the Company after RCF Group (or over which the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; RCF Group exercises control or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofdirection).
Appears in 1 contract
Standstill. During The Ancora Parties each agree that during the period Standstill Period (such periodas hereinafter defined), the “Standstill Term”) commencing Ancora Parties and their affiliates or associates (as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director defined in Rule 12b-2 promulgated pursuant to the Board pursuant to Section 5Securities Exchange Act of 1934, as amended (the "Exchange Act")) will not (and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall they will not do any of the following, except as approved, invited assist or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities manner, without prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board of Directors of MutualFirst:
(bi) make a acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift, tender, exchange or other public offer otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire Common Stock and/or Common Stock Equivalentsacquire, or securities convertible into or exchangeable for (collectively, an "Acquisition"), any securities of MutualFirst, such that as a result of such of such Acquisition, the Ancora Parties would maintain beneficial ownership in excess of 9.99% of the outstanding shares of MutualFirst common stock;
(cii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any "solicitation" of "proxies" or consents to vote (ias such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to have called advise, encourage or influence in any meeting manner whatsoever any person with respect to the voting of any voting securities of MutualFirst;
(iii) form, join, encourage, influence, advise or in any way participate in a "group" within the meaning of Section 13(d)(3) of the stockholders Exchange Act (other than a group involving solely the Ancora Parties) with respect to any voting securities of MutualFirst or otherwise in any manner agree, attempt, seek or propose to deposit any securities of MutualFirst in any voting trust or similar arrangement, or subject any securities of MutualFirst to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, arrangement or agreement solely among the Ancora Parties) except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the Company group involving the Ancora Parties as long as any additional member(s) agrees to be bound by the terms of this Agreement);
(iv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (a) any of the assets, tangible and intangible, direct or indirect, of MutualFirst or (b) direct or indirect rights, warrants or options to acquire any assets of MutualFirst;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any securities or assets of MutualFirst;
(vi) otherwise act, alone or in concert with others, propose or seek to offer to MutualFirst or any of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with MutualFirst or the Bank or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of MutualFirst or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of MutualFirst, nominate any person as a director of MutualFirst who is not nominated by the then incumbent directors (provided that if there is a vacancy on the MutualFirst Board of Directors the Ancora Parties may submit suggestions on a confidential basis to the MutualFirst Board of Directors or the Nominating Committee of the MutualFirst Board of Directors for nominees to the Board of Directors pursuant to the nomination policy adopted by the Board of Directors), or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)MutualFirst;
(dvii) directly or indirectly, encouragesell, accept transfer or support a tender, exchange otherwise dispose of any interest in the shares of MutualFirst common stock beneficially owned by the Ancora Parties to any person that would reasonably be understood to be the beneficial owner of 5% or other offer or proposal by any other Person or group (an “Offeror”) for securities more of the Company (if such offer or proposal wouldoutstanding shares of MutualFirst common stock, if consummated, result except in a Change transaction approved by the MutualFirst Board of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Directors;
(eviii) directly except in connection with the enforcement of this Agreement, initiate or indirectlyparticipate, solicit proxies by encouragement or consents otherwise, in any litigation against MutualFirst or propose the Bank or seek their respective directors or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)officers, or seek to advise or influence in any Personderivative litigation on behalf of MutualFirst, with respect to voting of any securities of the Company;except for testimony which may be required by law; or
(fix) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others to the voting of such securitiesdo, including the granting of or advise, assist or encourage others to do, any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in prohibited under clauses (i) through (viii) of this Paragraph 2, publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any MutualFirst annual meeting of stockholders during the Standstill Period, the Ancora Parties agree: (1) to vote all shares of MutualFirst they or any of them beneficially own in favor of the nominees for election or reelection as director of MutualFirst selected by the Board of Directors of MutualFirst and agree otherwise to support such director candidates, and (ii2) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities other proposal submitted by any MutualFirst stockholder to a vote of the Company;
(i) request or propose MutualFirst stockholders, to vote all of the MutualFirst shares they beneficially own in accordance with the recommendation of the MutualFirst Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the Board contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇▇ or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Substitute in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties his capacity as a member of MutualFirst's Board of Directors or the BoardBank's Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (C2) the Investor ability of the Ancora Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement directly with the President and Chief Executive Officer of MutualFirst, or any upon invitation, with other members of its Affiliates from exercising their respective rightsmanagement or the Board of Directors of MutualFirst. The "Standstill Period" shall begin as of the date of this Agreement and shall remain in full force and effect until the close of business on the date of the 2019 annual meeting of stockholders of MutualFirst. Notwithstanding anything in this Agreement to the contrary, performing their respective obligations or otherwise consummating at the transactions contemplated by this Agreementsole option of MutualFirst, the Purchase Agreement, Joint Venture Agreement, Standstill Period may be terminated by MutualFirst in the event that the beneficial ownership of the Ancora Parties decreases below 5% of the outstanding shares of MutualFirst common stock (in which event M▇. ▇▇▇▇▇▇▇ or the Preferred Distributor AgreementSubstitute, in each caseas the case may be, in accordance with shall promptly submit his resignation as a director of MutualFirst and the terms hereof and thereofBank).
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Each Investor agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(bi) make a tenderacquire, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectlyagree to acquire, (i) seek to have called alone or in concert with any meeting of the stockholders of the Company other individual or propose any matter to be voted upon entity, by the stockholders of the Companypurchase, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tendertender offer, exchange offer, agreement or other offer business combination or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal wouldmanner, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting beneficial ownership of any securities of the Company;
(fii) deposit submit any securities stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the Company in a voting trust Board, or subject recommend or request or induce or attempt to induce any securities of the Company other person to take any arrangement such actions, or agreement seek to advise, encourage or influence any other person with respect to the voting of such securities, including the granting of any Common Stock or grant a proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent voting of the Common Stock or other voting securities to any person other than to the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to or persons appointed as a “Business Combination”)proxies by the Board;
(hiv) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement other than as such terms are used set forth in the rules Schedule 13D on the date hereof;
(v) seek to call, or to request the call of, a special meeting of the SEC Company’s stockholders, or make a request for a list of the Company’s stockholders;
(vi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (A) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (including through any arrangement having substantially the same economic or other effect as a sale, lease, exchange, pledge, mortgage, or transfer or assets); (B) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries, or (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of its subsidiaries
(ix) make any demands for books and records and other materials pursuant to Section 220 of the DGCL or pursue any litigation related thereto against the Company, or to encourage, assist or cooperate with any third party with respect to any such demand(s) or litigation;
(ix) request disclose publicly, or propose privately in a manner that could reasonably be expected to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlybecome public, any amendment intention, plan or waiver arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provision provisions of this Section 2.1 (including this clause (i)3(a);
(jxii) make any public announcement regarding, or take any action publicly request that could require the Company to make a public announcement regardingamend or waive any provision of Sections 2 and 3(a);
(xiii) enter into any agreement, a potential Business Combination arrangement or understanding concerning any of the matters set forth in clauses foregoing (aother than this Agreement) through (i) above; oror encourage or solicit any person to undertake any of the foregoing activities;
(kxiv) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 3(a) or elsewhere in this Agreement shall prevent, restrict, encumber, or limit in any manner: prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director of the Investor Company, from (1) taking any action or making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to any Co-Executive Chairman or the Chief Executive Officer or any other director of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationCompany; (B) the an Investor Designee from performing its duties Director, acting in his or her fiduciary capacity as a member director of the BoardCompany, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to any Co-Executive Chairman or the Chief Executive Officer or another other officer or director of the Company; or (CD) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of directors of the Company and the other matters referenced in Section 2(a).
(b) As used in this Agreement:
(i) the Investor term “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified with respect to the specific action at issue hereunder; the term “Associate” means any corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and any relative or spouse of such person, or any relative of its Affiliates from exercising their respective rightssuch spouse, performing their respective obligations or otherwise consummating who has the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementsame home as such person, in each case, with respect to the specific action at issue hereunder; the term “control” shall have the meaning set forth in accordance with Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms hereof “beneficial owner” and thereof.“beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and
Appears in 1 contract
Standstill. During The Investor agrees that during the period (such periodStandstill Period, without the prior written approval of the Board, the “Standstill Term”Investor will not, directly or indirectly, and will cause its controlled Affiliates not to:
(a) commencing as acquire, offer or seek to acquire, agree to acquire or make a public proposal to acquire, by purchase or otherwise, any equity securities or debt securities of the First Closing Date and continuing until Company, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the later price of shares of Common Stock or any assets or property of the Company or any Subsidiary of the Company, or participation interests in any outstanding loans of the Company or any Subsidiary of the Company (but in any case excluding (i) any issuance by the second Company of shares of Company Common Stock or options, warrants or other rights to acquire Common Stock (2ndor the exercise thereof) anniversary of to any Investor Director as compensation for their membership on the Second Closing DateBoard, (ii) the date on which acquisition of the Investor ceases to have Preferred Stock or the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) acquisition of the shares of Common Stock then issued and outstanding, issuable upon conversion of the Investor (including SK ecoplant and the SPVPreferred Stock) and its Subsidiaries shall not do any of (iii) the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount acquisition of securities of the Company (a “Derivative”), except, nothing in this accordance with Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions5.18;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnershipany "solicitation" of "proxies" (whether or not relating to the election or removal of directors), limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any securities call or seek to call a meeting of the Company's stockholders or initiate any stockholder proposal or action by the Company's stockholders, or seek election to or to place a Representative on the Board (other than pursuant to Section 5.13) or seek the removal of any director from the Board;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jc) make any public announcement regardingwith respect to, or propose any merger or business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any Subsidiary, or any other extraordinary transaction involving the Company or any Subsidiary, or enter into any discussions, negotiations, arrangements, understandings or agreements with any other Person regarding any of the foregoing;
(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board or policies of the Company or any Subsidiary;
(e) make any public proposal or statement of inquiry or publicly disclose any intention, plan or arrangement consistent with the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;
(g) take any action that could would, in effect, require the Company to make a public announcement regarding, a potential Business Combination or Announcement with respect to any of the matters set forth in clauses (a) through (i) above; orforegoing;
(kh) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing actions referred foregoing, including, without limitation, forming, joining or in any way participating in a "group" (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to in (a) through any of the foregoing;
(i) aboverequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.10, provided that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.10, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by the Company; or
(j) contest the validity of this Section 5.10 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.10; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or 5.10 will limit in any manner: (A1) the Investor or any of its Affiliates from making confidentialParties' ability to vote, nonpublic proposals Transfer (subject to Section 5.11), convert (subject to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date Ownership Limitation), purchase Proposed Securities (subject to Section 5.20) or otherwise exercise rights under its Common Stock or Preferred Stock that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; were not acquired in contravention of this Section 5.10 or (B2) the ability of any Investor Designee from performing Director to vote or otherwise exercise its fiduciary duties or otherwise act in its capacity as a member of the Board; or (C) , and provided further that notwithstanding anything to the contrary in this Section 5.10, the Investor or any of and its Affiliates from exercising their respective rightsmay at any time (x) communicate privately with the Company's directors, performing their respective obligations officers or otherwise consummating advisors or submit to the transactions contemplated by this AgreementBoard one or more confidential proposals or offers for a transaction (including a transaction that, the Purchase Agreementif consummated, Joint Venture Agreementwould result in a Change of Control), or the Preferred Distributor Agreementso long as, in each case, in accordance with such communications and submissions are not intended to, and would not reasonably be expected to, require any public disclosure by the terms hereof Company of such communications or submissions, as applicable, (y) acquire up to an additional 5% of any class of debt securities or loans of the Company and thereof(z) after the first anniversary of the First Closing Date, acquire up to an additional 5% of the Common Stock (calculated based on the number of outstanding shares of Common Stock as of the Closing Date).
Appears in 1 contract
Standstill. During From the date of this Agreement until the date that is 15 calendar days prior to the last day of the advance notice period for the submission by shareholders of non-proxy access director nominations for the 2021 Annual Meeting (such period, as set forth in the advance notice provisions of the articles of incorporation and by-laws of the Company) (the “Standstill TermPeriod”) commencing as ), without the prior consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DateBoard, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Impala shall not, and shall instruct its Affiliates not to, directly or indirectly (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingin each case, except as approved, invited or waived by the Company or the Board, or as contemplated permitted by this Agreement:):
(a) acquire, offer to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other than Permitted Purchases and purchases distributions or offerings made available to holders of Preemptive Right Sharesvoting securities of the Company generally on a pro rata basis), directly or indirectly, acquire beneficial ownership whether by purchase, tender or exchange offer, through the acquisition of Common Stock and/or Common Stock Equivalents and/or control of another person, by joining a group, through Synthetic Equity Interests or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company (other than through a “Derivative”)broad-based market index) or any voting rights decoupled from the underlying voting securities that would result in the ownership or control of, exceptor other beneficial ownership interest in, nothing 9.9% or more of the then-outstanding shares of Common Stock in this Section 2.1(a) shall prevent the aggregate as reflected in the Company’s most recent Quarterly Report on Form 10-Q or prohibit Annual Report on Form 10-K filed with the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsSEC;
(b) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the 34834-9001-6440.3 Company’s directors are to be elected; (ii) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest at any Shareholder Meeting with respect to the Company’s directors; (iii) submit, initiate, make or be a tenderproponent of any shareholder proposal for consideration at, exchange or bring any other business before, any Shareholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any shareholder proposal for consideration at, or other public offer business brought before, any Shareholder Meeting; or (v) knowingly initiate, encourage or participate in any “withhold,” “against” or similar campaign with respect to acquire Common Stock and/or Common Stock Equivalentsany Shareholder Meeting;
(c) directly form, join or indirectly, (i) seek in any way participate in any group or agreement of any kind with respect to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, including in connection with any election or (ii) propose or nominate for election removal contest with respect to the Board Company’s directors or any person whose nomination has not been approved shareholder proposal or other business brought before any Shareholder Meeting (other than with Impala or one or more of its Affiliates and Associates that agree to be bound by a majority the terms and conditions of the Board (excluding the Investor Designee, if anythis Agreement);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy thereof (other than pursuant to any such voting trust, arrangement or agreement solely among Impala and its Affiliates and otherwise in accordance with this Agreement);
(ge) propose (i) seek, alone or in concert with others, to amend or waive any merger, consolidation, business combination, tender or exchange offer, purchase provision of the Company’s articles of incorporation or by-laws;
(f) demand a copy of the Company’s list of shareholders or an inspection of the Company’s other books and records;
(g) take any action in support of or make any proposal or request that constitutes (or would constitute if taken): (i) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the voting standard with respect to director elections, number of directors or term of directors or to fill any vacancies on the Board, (ii) any change in the capitalization, stock repurchase programs and practices, or dividend policy of the Company, (iii) any other change in the Company’s management, governance, business, corporate structure, affairs or policies, (iv) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (v) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any (i) material acquisition of any assets or businesses, purchase of any securities businesses of the Company or any Derivativeof its subsidiaries; (ii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any similar transaction involving of the material assets or businesses of the Company or any of its subsidiaries; or (iiiii) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary material transaction with respect to the Company, in each case without the prior written consent Company or any of the Board (a transaction described in clauses its subsidiaries or any material portion of its or their businesses; 44834-9001-6440.3
(i) and (ii) that would result call or seek to call, or request the call of, alone or in a Change of Controlconcert with others, is referred to as a “Business Combination”)any Shareholder Meeting;
(hj) act make any request or proposal that the Company or the Board amend, modify or waive any provision of this Agreement other than through non-public communications with the Company that would not be reasonably expected to result in concert or involve public disclosure obligations for any party;
(k) take any action challenging the validity or enforceability of this Section 4 or this Agreement unless the Company is challenging the validity or enforceability of this Agreement; or
(l) enter into any negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in with respect to any way participate in a “partnership, limited partnership, syndicateof the foregoing, or other group” as such terms are used in the rules otherwise take or cause any action inconsistent with any of the SEC foregoing. Nothing in this Section 4 shall be deemed to prohibit Impala from making any disclosure required by rule, law, regulation or legal process or as requested by regulatory or judicial authority; provided that any such disclosures by Impala or its Affiliates complies (i) with all existing confidentiality obligations of Impala with respect to the Company or any securities of the Company;
, including under Section 7, and (iii) request or propose would not be used to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this circumvent Impala’s obligations under Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a4(a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof4(l).
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases During the Standstill Period, the Atairos Stockholder shall not, and purchases shall cause each member of Preemptive Right SharesAtairos Group not to, directly or indirectly, acquire beneficial ownership in any manner, alone or in concert with others, take any of Common Stock and/or Common Stock Equivalents and/or the following actions without the prior written consent of the Company:
(i) make, engage in, or in any instrument that gives way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the Investor proxy rules of the economic equivalent SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of ownership of an amount of any securities of the Company (for the election of individuals to the Board of Directors or to approve any proposals submitted to a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting vote of the stockholders of the Company that have not been authorized and approved, or propose any matter to be voted upon recommended for approval, by the stockholders Board of the CompanyDirectors, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation any contested “solicitation” (as such terms are defined in Regulation 14A or used under the Exchange Act), or seek to advise or influence any Person, ) for the election of directors with respect to voting the Company, other than a “solicitation” or acting as a “participant” in support of the Atairos Designee or all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any Third Party with respect to any securities of the Company;
(f) Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in a any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesthereof, including the granting of any proxy (other than pursuant to except as expressly permitted by this Agreement);
(giii) acquire, offer or propose (i) any mergerto acquire, consolidationor agree to acquire, business combinationdirectly or indirectly, whether by purchase, tender or exchange offer, purchase through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Company’s Exchange Act), through swap or hedging transactions or otherwise, any securities or any assets of the Company or businessesany of its Subsidiaries, purchase or any warrant, option or other right to acquire any such securities or assets of the Company or any rights decoupled from the underlying securities that would result in Atairos Group Beneficially Owning 33% or more in the aggregate of the outstanding Common Stock; provided that any acquisitions of securities of the Company or rights therein by Atairos Group permitted pursuant to the foregoing provisions of this Section 2.02(a)(iii) shall be made (A) in accordance with applicable securities laws and (B) until after the end of any Derivativepending restricted trading period then in effect at the time the Atairos Designee is no longer serving on the Board of Directors, in accordance with the Company’s restricted trading period then in effect during which directors and executive officers of the Company are not permitted to trade under the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy of the Company then in effect; and provided further, that nothing herein shall require any shares of Common Stock to be sold to the extent that Atairos Group exceeds the ownership limit under this paragraph as the result of a share repurchase or any other Company action that reduces the number of outstanding shares of Common Stock;
(iv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any similar way assist or facilitate any other Person to effect or seek to effect, offer or propose to effect, cause or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its Subsidiaries or joint ventures or any of their respective securities (iieach, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction;
(v) (A) call or seek to call any recapitalizationmeeting of stockholders of the Company, restructuringincluding by written consent, liquidation (B) seek representation on the Board of Directors, except in accordance with Section 3.01 so long as such section is in full force and effect, (C) seek any other material, non-ordinary course change in the Company’s management, business or corporate structure, (D) seek the removal of any member of the Board of Directors (other extraordinary transaction than any Atairos Designee), (E) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, in each case without the prior written consent (F) conduct a referendum of stockholders of the Company or (G) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vi) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, (C) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws that may impede or facilitate the acquisition of control of the Company by any Person, (D) causing a transaction described in clauses class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (iE) and causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(iivii) that would result in a Change make any request to amend or waive any provision of Control, is referred to as a “Business Combination”this Section 2.02(a);
(hviii) act in concert make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) take any action challenging the validity or enforceability of this Section 2.02; or
(x) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, knowingly assist, knowingly encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in make any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC statement with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; orforegoing.
(kb) enter into discussions, negotiations, arrangements or agreements with any Person relating The foregoing provisions of Section 2.02(a) shall not be deemed to prohibit the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Atairos Stockholder or any of its Affiliates from making confidentialcommunicating privately with the Company’s directors, nonpublic proposals officers or advisors, on topics related to the Company and its business, including strategic considerations, so long as such communications (x) do not include any proposals requiring the action of the Board for of Directors in connection therewith and (y) are not publicly disclosed and are not intended to, and would not reasonably be expected to, require any public disclosure. For the avoidance of doubt, the consideration by the Board of Directors of any such communication, in the exercise of its discretion, shall not, in and of itself, cause such communication to be deemed a “proposal requiring the action of the Board of Directors in connection therewith.” If the Company determines to explore a process with respect to a transaction involving that, if consummated, would result in a Business Combination following Change in Control, the Company shall provide the Atairos Stockholder prompt notice of such decision and, if such process is pursued, shall invite the Atairos Group to participate on the same basis as other Third Party participants.
(c) Nothing in this Section 2.02 shall limit any action that may be taken by any Atairos Designee acting solely as a director of the Company consistent with his or her fiduciary duties as a director of the Company if such action does not include any public announcement or disclosure by such Atairos Designee or any member of Atairos Group.
(d) Notwithstanding anything in this Section 2.02 to the contrary, the prohibitions and obligations in this Section 2.02 shall immediately terminate and be of no further force or effect and the Company after and the Second Closing Date that it has entered Atairos Stockholder and other members of Atairos Group shall be released from further compliance therewith if (i) a Change in Control is consummated, (ii) the Company enters into a definitive agreement with providing for a transaction that, if consummated, would result in a Change in Control or (iii) a Third Party makes a Third Party Tender/Exchange Offer.
(e) Notwithstanding anything to the contrary contained herein, the Atairos Stockholder shall be entitled to vote all shares of outstanding Common Stock Beneficially Owned by it in its sole discretion.
(f) Notwithstanding anything in this Section 2.02 to the contrary, the prohibitions in this Section 2.02 shall immediately terminate and be of no force or effect and Atairos Group shall be released from compliance therewith if the Company (i) institutes a voluntary proceeding, or becomes the subject of an involuntary proceeding which involuntary proceeding is not dismissed within 60 days, under any bankruptcy act, insolvency law or any law for the relief of debtors, (ii) has a transaction involving a Business Combination; (B) the Investor Designee from performing receiver appointed to manage its duties as a member of the Board; affairs, which appointment is not dismissed, vacated or stayed within 60 days or (Ciii) executes a general assignment for the Investor or any benefit of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofcreditors.
Appears in 1 contract
Standstill. During Except for securities acquired pursuant to the exercise of an option to purchase common stock of the Company issued in connection with the Executive’s employment by the Company, neither the Executive nor any affiliates or representatives of the Executive (acting on behalf of or in concert with the Executive, any of the Executive’s affiliates or any of the Executive’s other representatives) will, at any time during the two (2) year period commencing on the Resignation Date (or, at any time during such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateassist, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5advise, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited act in concert or waived by the Company agreement or the Board, participate with or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly: (i) acquire or agree, acquire offer, seek or propose to acquire, by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, any ownership, including, but not limited to, beneficial ownership ownership, as defined in Rule 13d-3 under the Exchange Act, of Common Stock and/or Common Stock Equivalents and/or any instrument that gives of the Investor the economic equivalent of ownership of an amount of assets, businesses or securities of the Company or any direct or indirect subsidiary thereof, or any rights or options to acquire such ownership (a “Derivative”including from any third party); (ii) offer to enter into or propose any merger, exceptbusiness combination, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tenderrecapitalization, exchange restructuring or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of extraordinary transaction with the Company or propose any matter to be voted upon by direct or indirect subsidiary thereof; (iii) initiate any stockholder proposal or the stockholders convening of the Company, a stockholder’s meeting of or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of involving the Company or any direct or indirect subsidiary thereof; (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”);
(eiv) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A Rule 14a-1 under the Exchange Act), whether or seek not such solicitation is exempt pursuant to advise or influence any PersonRule 14a-2 under the Exchange Act, with respect to voting any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any securities shares of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities capital stock of the Company or any Derivativesecurities convertible into, exchangeable for or exercisable for (in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any similar transaction involving communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act; (v) otherwise seek or propose to influence, advise, change or control the management, board of directors, governing instruments, affairs or policies of the Company or any direct or indirect subsidiary thereof; (iivi) enter into any recapitalizationdiscussions, restructuringnegotiations, liquidation agreements, arrangements or other extraordinary transaction understandings with any person with respect to the Company, in each case without the prior written consent of the Board (a transaction any matter described in the foregoing clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (gvi); or (vii) aboveother than as required by law, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingdisclosure, or take any action that could reasonably be expected to require the Executive or the Company to make a public announcement regardingdisclosure, a potential Business Combination or with respect to any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof5.
Appears in 1 contract
Standstill. During the period The Stockholder shall not, nor shall any of its directors, officers, employees, agents, advisors or other representatives (such period, the “Standstill TermRepresentatives”) commencing as on its behalf, without the prior written consent of the First Closing Date and continuing until the later Exar or its Board of Directors (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate or a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:duly empowered committee thereof):
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesduring the Lock-Up Period:
(1) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of Exar or any Subsidiary thereof, or of any successor to or person in control of Exar, or any assets (other than assets in the ordinary course of business) of Exar or any Subsidiary or division thereof or of any such successor or controlling person; provided, however, that the Stockholder may acquire voting securities of Exar, or any Subsidiary thereof, or of any successor to or person in control of Exar so long as its aggregate beneficial ownership of Common Stock and/or Common Stock Equivalents and/or Exar, such Subsidiary or such Person does not at any instrument that gives time during the Investor the economic equivalent of ownership of an amount of securities Lock-Up Period exceed 19% of the Company Exar voting securities (on a “Derivative”fully diluted basis assuming conversion or exercise of all outstanding Exar Derivative Securities); or
(2) or request Exar or any of its Representatives, exceptdirectly or indirectly, nothing in to amend or waive any provision of this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;5(a); and
(b) make during the period commencing on the Closing Date and ending on the date that is the two (2)-year anniversary of the Effective Time of the Merger:
(1) subject to the Stockholder’s right to designate a tenderrepresentative for nomination by the Board of Directors for election as a director pursuant to Section 7(b) below, exchange or other public offer nominate any person to acquire Common Stock and/or Common Stock Equivalentsthe Board of Directors of Exar;
(c2) call or attempt to call a special meeting of the stockholder of Exar;
(3) make, or in any way participate, directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the Exchange Actrules of the SEC), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securitiesany voting securities of Exar (including, including the granting without limitation, making any public statement in favor or support of any proxy (other than pursuant to this Agreementproposal not approved by the Board of Directors of Exar);
(g4) propose make any public announcement with respect to, or submit a proposal for, or offer of (iwith or without conditions) any merger, consolidation, business combination, extraordinary transaction (including a tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company ) involving Exar or any Derivative, of its securities or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(h5) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) of the SEC Exchange Act, in connection with respect to the Company or any securities of the Companyforegoing;
(i6) request or propose to the Board or the Company (Exar or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)Representatives, directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 (including this clause (i5(b));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During the Each Holder agrees that for a period (such period, the “Standstill TermRestricted Period”) commencing as with the date of this Agreement and ending on the date that proxies for the Company’s 2008 annual meeting of stockholders are first solicited, neither such Holder nor any Affiliate of such Holder shall, without the prior written consent of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCompany:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacquire, offer to acquire, or agree to acquire, or encourage or suggest to any third party that they acquire, offer to acquire, or agree to acquire, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or by purchase or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an material amount of securities assets of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have any subsidiary or share decision-making authority over investment division thereof or divestment decisionsof any such successor or controlling person;
(b) make a tenderencourage or suggest to any third party that such party (including any of its Affiliates) acquire, exchange or other public offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, an aggregate of 15% or more (including any such securities held prior to the contact by such Holder or Affiliate of a Holder) of any voting securities or direct or indirect rights to acquire Common Stock and/or Common Stock Equivalentsany voting securities of the Company or any subsidiary thereof;
(c) make, or in any way participate, directly or indirectly, (i) seek or encourage or suggest to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companythird party that they make, or (ii) propose or nominate for election in any way participate, in any “solicitation” of “proxies” to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the rules of the Securities and Exchange ActCommission (“SEC”)), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securities, including any voting securities of the granting of any proxy (other than pursuant Company with respect to this Agreement);
(g) propose (i) a transaction described in (a) or (b) above, (ii) any extraordinary transaction, such as a merger, consolidationreorganization or liquidation involving the Company or any subsidiary or division thereof, business combination, tender (iii) any material change in the present board of directors or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities management of the Company or any Derivativesubsidiary or division thereof, including, but not limited to, any plans or proposals to change the number or the term of directors, to remove any director or to fill any existing vacancies on the board, except as provided in the Letter Agreement, or to change any similar transaction involving material term of the Company employment contract of any executive officer, (iv) the opposition of any person nominated by the Company’s nominating committee, or (iiv) any recapitalization, restructuring, liquidation material change in the Company’s capital structure or other extraordinary transaction business;
(d) make any public announcement with respect to the Company, in each case without the prior written consent of the Board (a transaction any matter described in clauses subparagraphs (ia) and (iic) that would result in a Change of Control, is referred to as a “Business Combination”)above;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) of the SEC Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with respect to the Company or any securities of the Company;foregoing; or
(if) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action (other than an action to terminate this Agreement as provided in Section 3 below) that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ic) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Sources: Standstill Agreement (Integrated Silicon Solution Inc)
Standstill. (1) During the such period as (such periodx) Leven is Chairman, the “Standstill Term”) commencing as Chief Executive Officer or President of the First Closing Date Company and continuing until the later of (iy) the second (2nd) anniversary of Principal Stockholders and their Included Transferees, in the Second Closing Dateaggregate, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) at least one-half of the shares of Common Stock then issued and outstandingowned by such Persons, in the aggregate, on the date hereof, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingDesignated Holders each agree, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result of Directors of the Company specifically expressed in a Change resolution adopted by a majority of Controlthe directors of the Company who are not Affiliates of the Designated Holders, is referred that the Designated Holders, acting either individually or together, will not, and the Designated Holders will use their reasonable best efforts to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orcause each of its Affiliates not to, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;:
(i1) request acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally, provided, that any such securities shall be subject to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesprovisions hereof), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (as hereinafter defined), by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any amendment or waiver equity securities of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make that would result in such Designated Holder and its Affiliates, in the aggregate, owning Voting Securities representing a public announcement regardinggreater amount of the voting power of the Company than would be held by any Nonexcluded Person following such transaction. "Nonexcluded Person" means any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Principal Stockholders, the Included Transferees or a potential Business Combination or "group" which includes any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Principal Stockholders or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.Included Transferees;
Appears in 1 contract
Standstill. During The PL Capital Parties each agree that, for a period of time commencing at the period Closing and continuing for five years following the Closing (such periodthe "Standstill Period"), they and their affiliates and associates (as defined in Rule 12b-2 promulgated pursuant to the “Standstill Term”Securities Exchange Act of 1934, as amended (the "Exchange Act")) commencing as will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the First Closing Date and continuing until the later Board of (i) the second (2nd) anniversary Directors of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCentral Bancorp:
(a) other than Permitted Purchases and purchases acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Preemptive Right SharesRule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an "Acquisition"), any securities of Central Bancorp ("Securities");
(b) make, or in any way participate in, directly or indirectly, acquire beneficial ownership alone or in concert with others, any "solicitation" of Common Stock and/or Common Stock Equivalents and/or any instrument that gives "proxies" to vote (as such terms are used in the Investor the economic equivalent of ownership of an amount of securities proxy rules of the Company (a “Derivative”), except, nothing Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund any manner whatsoever any person with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsvoting of any voting securities of Central Bancorp;
(c) form, join or in any way participate in a "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting Securities of Central Bancorp;
(d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of Central Bancorp or (ii) direct or indirect rights, warrants or options to acquire any assets of Central Bancorp;
(e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any Securities or securities convertible or exchangeable into or exercisable for any Securities or assets of Central Bancorp;
(f) otherwise act, alone or in concert with others to seek to have called offer to Central Bancorp or any meeting of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with Central Bancorp or otherwise seek, alone or in concert with others to control or change the stockholders management, board of directors or policies of Central Bancorp or nominate any person as a director of Central Bancorp who is not nominated by the Company then incumbent directors, or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);Central Bancorp; or
(g) propose (i) announce an intention to do, or enter into any mergerarrangement or understanding with others to do, consolidation, business combination, tender or exchange offer, purchase any of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in prohibited under clauses (a) through (gf) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Paragraph 2, or other group” as such terms are used in the rules of the SEC with respect publicly announce or disclose any request to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or be excused from any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in obligations of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofParagraph 2.
Appears in 1 contract
Sources: Stock Purchase Agreement (Central Bancorp Inc /Ma/)
Standstill. During From the period (such period, the “Standstill Term”) commencing as date of the First Closing Date this Agreement and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Termination Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board except pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived a negotiated transaction approved by the Company or the Board, the Stockholder and its Affiliates will not, in any manner, directly or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases make, effect, initiate, cause or participate in (A) any acquisition of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of Commerce and its Related Entities, (B) any acquisition of any assets of Commerce and its Related Entities, (C) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Commerce and its Related Entities, or involving any securities or assets of Commerce and its Related Entities or (D) any "solicitation" of "proxies" (as those terms are used in the Company (a “Derivative”), except, nothing in this Section 2.1(aproxy rules of the Securities and Exchange Commission) shall prevent or prohibit the Investor from investing in a fund consents with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsany securities of Commerce;
(b) make form, join or participate in a tender"group" (as defined in the Securities Exchange Act of 1934, exchange as amended, and the rules promulgated thereunder), pooling agreement, syndicate or other public offer voting trust with respect to acquire Common Stock and/or Common Stock Equivalentsthe beneficial ownership of any securities of Commerce, or otherwise act in concert with another stockholder of securities of Commerce for the purpose of acquiring, holding, voting or disposing of Commerce's securities;
(c) directly act, alone or indirectlyin concert with others, (i) to seek to have called any meeting control or influence the management, Board or policies of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Commerce;
(d) directly or indirectly, encourage, accept or support take any action which might force Commerce to make a tender, exchange or other offer or proposal by public announcement regarding any other Person or group (an “Offeror”) for securities of the Company types of matters set forth in clause "(if such offer or proposal would, if consummated, result in a Change a)" of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)this sentence;
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company that Commerce (or any of its directors, officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesemployees or agents), directly or indirectly, any amendment amend or waiver of waive any provision of this Section 2.1 (3.2, including this clause subsection (i)e);
(jf) make any public announcement regardingagree or offer to take, or take encourage or propose (publicly or otherwise) the taking of, any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in clauses "(a) through (i) above; provided)", however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof."
Appears in 1 contract
Standstill. During Purchaser agrees that, for a period ending on the period later to occur of (such period, ii) the “Standstill Term”) commencing as second anniversary of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which that the Investor ceases to have Purchaser no longer owns at least 7.5% of the right to designate a director to outstanding Common Stock (the “Standstill Period”), unless specifically approved by the Board pursuant to Section 5of Directors, the Purchaser shall not, and (iii) the date on which the Investor (including SK ecoplant and SPV) and shall cause its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingAffiliates, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followinginvestment fund or holding company directly or indirectly, except as approved, invited managed or waived controlled by the Company Purchaser or the Boardany other Person acting on Purchaser’s behalf not to, or as contemplated by this Agreementin any manner:
(a) effect, seek, publicly offer or publicly propose to effect, or cause or participate in, or in any way assist any other than Permitted Purchases and purchases Person to effect, seek, publicly offer or publicly propose to effect or participate in, individually or as part of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;group:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting acquisition of (x) any securities (or Beneficial Ownership thereof) that results in Purchaser Beneficially Owning more than 5% of the stockholders Company’s then outstanding Common Stock (excluding the Securities) or (y) all or substantially all of the assets of the Company or propose any matter to be voted upon by the stockholders of the Company, or its Subsidiaries;
(ii) propose any tender or nominate for election to exchange offer, merger or other business combination involving the Board Company or any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)its Subsidiaries;
(diii) directly or indirectlyany recapitalization, encouragerestructuring, accept or support a tenderliquidation, exchange dissolution or other offer or proposal by any other Person or group (an “Offeror”) for securities of extraordinary transaction with respect the Company (if such offer or proposal would, if consummated, result in a Change any of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);its Subsidiaries; or
(eiv) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act), Commission) or seek consents to advise or influence vote any Person, with respect to voting of any securities of the Company;
(fb) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC Exchange Act) with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(jc) make any public announcement regardingwith respect to any extraordinary transaction or merger, consolidation, sale of substantial assets or business combination involving the Company or its securities or assets;
(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; Table of Contents
(e) take any action that could require which would reasonably be expected to force the Company to make a public announcement regarding, a potential Business Combination or regarding any of the types of matters set forth in clauses (a) through (i) above; or
(kf) enter into discussions, negotiations, any discussions or arrangements or agreements with any Person relating third party with respect to any of the foregoing actions referred to foregoing; provided that in (a) through no event shall the provisions of this Section 5.7 prohibit the Purchaser from (i) above; providedreceiving Common Stock as a result of dividends or stock splits authorized by the Board of Directors where all holders of the Common Stock participate on a ratable basis, however(ii) at its option, that nothing contained in this Section 2.1 shall prevent, restrict, encumberincreasing its Beneficial Ownership to include additional shares of Common Stock so long as the Purchaser does not Beneficially Own more than 5% of the Company’s then outstanding Common Stock (excluding the Securities), or limit (iii) presenting a proposal on a confidential basis to the Board of Directors with respect to a transaction described in any manner: 5.7(a)(i)-(iii) above. Notwithstanding anything set forth herein, this paragraph 5.7 shall terminate upon (A) the Investor acquisition by any person or any group of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by beneficial ownership of voting securities of the Company after representing 25% or more of the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationthen outstanding voting securities of the Company; (B) the Investor Designee from performing its duties as announcement or commencement by any person or group of a member tender or exchange offer to acquire voting securities of the BoardCompany, which, (1) is recommended by the Board of Directors in a Schedule 14d-9 and (2) if successful, would result in such person or group owning, when combined with any other voting securities of the Company owned by such person or group, 20% or more of the then outstanding voting securities of the Company; or (C) the Investor entry into by the Company of any merger, sale or any other business combination transaction pursuant to which the outstanding shares of its Affiliates from exercising their respective rights, performing their respective obligations common stock of such party would be converted into cash or otherwise consummating securities of another person or group or 50% or more of the transactions contemplated by this Agreement, then outstanding shares of common stock of the Purchase Agreement, Joint Venture AgreementCompany, or surviving, resulting or parent entity would be owned by persons other than the Preferred Distributor Agreementthen current holders of shares of common stock of the Company, or which would result in each case, in accordance with all or a substantial portion of the terms hereof and thereofCompany’s assets being sold to any person or group.
Appears in 1 contract
Standstill. During Investor hereby agrees that, without the period (such period, the “Standstill Term”) commencing as prior approval of the First Closing Date and continuing until Board (as defined in the later of (i) the second (2nd) anniversary of the Second Closing DatePurchase Agreement), (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do and shall not permit or cause any Affiliate (as defined in the Purchase Agreement) or Representative of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementInvestor to:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesacting alone or with others, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase, merger, business combination or in any other manner, any voting securities or direct or indirect rights to acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company if after such acquisition Investor, together with its Affiliates, would own more than 10% of the outstanding capital stock of the Company or voting power of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person; provided that any investment by Investor or an Affiliate of Investor in third-party mutual funds or other similar passive investment vehicles that hold interests in securities of the Company or any of its Affiliates shall not be taken into account for the purpose of this subparagraph (a “Derivative”a), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tenderenter into any voting agreements, exchange trusts or similar arrangements with respect to voting securities of the Company other public offer to acquire Common Stock and/or Common Stock Equivalentsthan as set forth herein;
(c) make, or in any way participate, directly or indirectly, (i) seek in any “solicitation” of “proxies” to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation vote (as such terms are defined used in Regulation 14A under the rules promulgated by the Securities and Exchange ActCommission (the “Commission”)), or seek to advise or influence any Person, person or entity with respect to the voting by any third party of any voting securities of the Company;
(fd) deposit make any securities of the Company in a voting trust public announcement, directly or subject any securities of the Company to any arrangement or agreement indirectly, with respect to the voting to, or submit a proposal for, or offer of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iwith or without conditions) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar extraordinary transaction involving the Company or (ii) any recapitalization, restructuring, liquidation of its securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)assets;
(he) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used defined in the rules Section 13(d)(3) (a “13D Group”) of the SEC Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with respect any of the foregoing;
(f) act, alone or in concert with others, to seek to control, advise, change or influence the Company management, Board, governing instruments, policies or any securities affairs of the Company;
(ig) request disclose any intention, plan or propose to arrangement inconsistent with the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))foregoing;
(jh) make have any public announcement regardingdiscussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or regarding the possibility of any of the matters set forth events described in clauses (a) through (ih) above; or
(kj) enter into discussions, negotiations, arrangements or agreements with any Person relating to request the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its Affiliates from making confidentialagents or Representatives, nonpublic proposals directly or indirectly, in any public manner, to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member amend or waive any of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing provisions.
Appears in 1 contract
Sources: Standstill and Stock Restriction Agreement (Denali Therapeutics Inc.)
Standstill. During The PL Capital Parties each agree that during the period Standstill Period (such periodas hereinafter defined), the “Standstill Term”) commencing PL Capital Parties and their affiliates or associates (as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director defined in Rule 12b-2 promulgated pursuant to the Board pursuant to Section 5Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall they will not do any of the following, except as approved, invited assist or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities manner, without prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board of Directors of MutualFirst:
(bi) make a acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift, tender, exchange or other public offer otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire Common Stock and/or Common Stock Equivalentsacquire, or securities convertible into or exchangeable for (collectively, an “Acquisition”), any securities of MutualFirst, such that as a result of such of such Acquisition, the PL Capital Parties would maintain beneficial ownership in excess of 9.99% of the outstanding shares of MutualFirst common stock;
(cii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (ias such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to have called advise, encourage or influence in any meeting manner whatsoever any person with respect to the voting of any voting securities of MutualFirst;
(iii) form, join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the stockholders Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of MutualFirst or otherwise in any manner agree, attempt, seek or propose to deposit any securities of MutualFirst in any voting trust or similar arrangement, or subject any securities of MutualFirst to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, arrangement or agreement solely among the PL Capital Parties) except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the Company group involving the PL Capital Parties as long as any additional member(s) agrees to be bound by the terms of this Agreement);
(iv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (a) any of the assets, tangible and intangible, direct or indirect, of MutualFirst or (b) direct or indirect rights, warrants or options to acquire any assets of MutualFirst;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any securities or assets of MutualFirst;
(vi) otherwise act, alone or in concert with others, propose or to seek to offer to MutualFirst or any of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with MutualFirst or the Bank or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of MutualFirst or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of MutualFirst, nominate any person as a director of MutualFirst who is not nominated by the then incumbent directors (provided that if there is a vacancy on the MutualFirst Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the MutualFirst Board of Directors or the Nominating Committee of the MutualFirst Board of Directors for nominees to the Board of Directors pursuant to the nomination policy adopted by the Board of Directors), or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)MutualFirst;
(dvii) directly or indirectly, encouragesell, accept transfer or support a tender, exchange otherwise dispose of any interest in the shares of MutualFirst common stock beneficially owned by the PL Capital Parties to any person that would reasonably be understood to be the beneficial owner of 5% or other offer or proposal by any other Person or group (an “Offeror”) for securities more of the Company (if such offer or proposal wouldoutstanding shares of MutualFirst common stock, if consummated, result except in a Change transaction approved by the MutualFirst Board of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Directors;
(eviii) directly except in connection with the enforcement of this Agreement, initiate or indirectlyparticipate, solicit proxies by encouragement or consents otherwise, in any litigation against MutualFirst or propose the Bank or seek their respective directors or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)officers, or seek to advise or influence in any Personderivative litigation on behalf of MutualFirst, with respect to voting of any securities of the Company;except for testimony which may be required by law; or
(fix) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others to the voting of such securitiesdo, including the granting of or advise, assist or encourage others to do, any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in prohibited under clauses (i) through (viii) of this Paragraph 3, publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 3 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any MutualFirst annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of MutualFirst they or any of them beneficially own in favor of the nominees for election or reelection as director of MutualFirst selected by the Board of Directors of MutualFirst and agree otherwise to support such director candidates, and (ii2) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities other proposal submitted by any MutualFirst stockholder to a vote of the Company;
(i) request or propose MutualFirst stockholders, to vote all of the MutualFirst shares they beneficially own in accordance with the recommendation of the MutualFirst Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the Board contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by ▇▇. ▇▇▇▇▇▇▇ or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Substitute in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties his capacity as a member of MutualFirst’s Board of Directors or the BoardBank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (C2) the Investor ability of the PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 3 of this Agreement directly with the President and Chief Executive Officer of MutualFirst, or upon invitation, with other members of management or the Board of Directors of MutualFirst. The “Standstill Period” shall begin as of the date of this Agreement and shall remain in full force and effect until the later of (1) the close of business on the date of the 2016 annual meeting of stockholders of MutualFirst or (2) the last day that ▇▇. ▇▇▇▇▇▇▇ or any substitute for ▇▇. ▇▇▇▇▇▇▇ nominated by the PL Capital Parties pursuant to Paragraph 5 hereof (the “Substitute”), as the case may be, serves as a director of its Affiliates from exercising their respective rightsMutualFirst or the Bank. Notwithstanding anything in this Agreement to the contrary, performing their respective obligations or otherwise consummating at the transactions contemplated by this Agreementsole option of MutualFirst, the Purchase Agreement, Joint Venture Agreement, Standstill Period may be terminated by MutualFirst in the event that the beneficial ownership of the PL Capital Parties decreases below 5% of the outstanding shares of MutualFirst common stock (in which event ▇▇. ▇▇▇▇▇▇▇ or the Preferred Distributor AgreementSubstitute, in each caseas the case may be, in accordance with shall promptly submit his resignation as a director of MutualFirst and the terms hereof and thereofBank).
Appears in 1 contract
Standstill. During From the period Effective Date until the Expiration Date or until such earlier time as the restrictions in this paragraph 11 terminate as provided herein (such period, the “Standstill TermRestricted Period”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding), the Investor will not, and will cause its controlled Affiliates and their principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (including SK ecoplant and collectively, the SPV“Restricted Persons”) and its Subsidiaries shall not do any of the followingto, except as approveddirectly or indirectly, invited absent prior express written invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases engage in any “solicitation” (as such term is defined under the Exchange Act) of Preemptive Right Shares, directly proxies or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund consents with respect to which the Investor does not have election or share decision-making authority over investment removal of directors or divestment decisionsany other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, knowingly encourage, accept advise or support a tender, exchange or other offer or proposal by influence any other Person or group (an “Offeror”) for securities of the Company (if such offer knowingly assist any Person in so encouraging, advising or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence influencing any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of such securities, including any securities or the granting giving or withholding of any proxy proxy, consent or other authority to vote or in conducting any type of referendum, binding or non-binding (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or act in concert with any partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act with respect to any Voting Securities, other than solely with other Affiliates of the Investor with respect to Voting Securities now or hereafter owned by them;
(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of, any Voting Securities of the Company, or rights or options to acquire any Voting Securities of the Company if such acquisition would result in the Investor having beneficial ownership of more than 4.99% of the Company’s outstanding common stock;
(e) make or in any way knowingly participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or its or their securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Investor from tendering shares, receiving payment for shares or otherwise participating in any such transaction (that has not been initiated by the Investor or its Affiliates) on the same basis as other shareholders of the Company, or from participating in any such transaction that has been approved by the Board); or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any of the types of matters set forth above in this Agreement)paragraph;
(f) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the Investor or customary brokerage accounts, margin accounts, prime brokerage accounts or similar accounts, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved by the Board or to a Third Party to the extent not restricted from doing so pursuant to paragraph 7;
(g) propose (i) any mergerseek, consolidationalone or in concert with others, business combination, tender election or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeappointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any similar transaction involving candidate to the Company or Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent member of the Board Board; or (iii) conduct a transaction described in clauses (i) and (ii) that would result in a Change referendum of Control, is referred to as a “Business Combination”)shareholders;
(h) act make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(i) except as set forth herein, make any public proposal with respect to (i) any change in concert the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to the Company’s Certificate of Incorporation or Bylaws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(j) enter into any negotiations, agreements or understandings with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in that the rules of the SEC with respect Investor is prohibited from taking pursuant to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveparagraph 11; or
(k) enter into discussionsmake any request or submit any proposal, negotiationsdirectly or indirectly, arrangements to amend or agreements with any Person relating waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal; provided, that (A) the foregoing actions referred to restrictions in (a) through this paragraph 11 shall terminate automatically upon the earliest of (i) above; providedas a non-exclusive remedy for any material breach of this Agreement by the Company (including, howeverwithout limitation, a failure to elect the Investor Designee and otherwise constitute the Board in accordance with paragraph 1, or a failure to issue the Company Press Release in accordance with paragraph 10), upon five (5) business days’ prior written notice by the Investor following any such material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that the Investor is not in material breach of this Agreement at the time such notice is given, (ii) such time as the Company files its definitive proxy statement with the SEC for the 2022 Annual Meeting that does not comply with the terms of this Agreement, (iii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, (iv) the commencement of any tender or exchange offer (by a person other than the Investor or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s shareholders reject such tender or exchange offer or (v) the adoption by the Board of any amendment to the Certificate of Incorporation or Bylaws of the Company that would reasonably be expected to impair the ability of a shareholder to submit nominations for election to the Board or shareholder proposals in connection with any future Company Annual Meeting of Shareholders, and (B) nothing contained in this Section 2.1 paragraph 11 shall preventprevent the Investor from making (i) any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, restrict, encumberand nothing in this Agreement shall prevent the Company from responding to such statements subject to the obligations of the parties under paragraph 12, or limit in (ii) any manner: factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the party from whom information is sought or (Aiii) any private statement to the Investor Company or any of its Affiliates from making confidential, nonpublic proposals representatives so long as such communications would not reasonably be expected to require any public disclosure of such communications . Notwithstanding anything to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) contrary in this Agreement, nothing in this paragraph 11 shall prohibit or restrict the Investor Designee from performing its exercising his or her rights and fiduciary duties as a member director of the Board; Company or (C) restrict his or her discussions solely among other members of the Investor Board and/or management, advisors, representatives or any agents of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 1 contract
Sources: Co Operation Agreement (International Flavors & Fragrances Inc)
Standstill. (a) During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingPeriod, the Investor (including SK ecoplant agrees that it shall not, and the SPV) shall use its reasonable commercial efforts to cause its Affiliates and its Subsidiaries shall Associates not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly:
(i) acquire, offer or seek to acquire, agree to acquire, or acquire beneficial ownership rights or options to acquire (except by way of Common Stock and/or Common Stock Equivalents and/or stock dividends or other distributions or offerings made available to holders of Voting Securities of the Company generally on a pro rata basis or pursuant to an Extraordinary Transaction), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (other than through a “Derivative”broad-based market basket or index or pursuant through the conversion mechanics of the senior second lien secured convertible promissory notes of the Company), except, nothing in this Section 2.1(a) shall prevent or prohibit any rights decoupled from the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders underlying securities of the Company, or any derivative securities, contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of the Company; provided, however, that the Investor may, in accordance with the terms of this Agreement and applicable securities laws, acquire shares of Common Stock so long as the Investor beneficially owns, in the aggregate, no more than 9.9% of the then outstanding shares of Common Stock; and further provided, however, that the Investor may, with the prior written consent of the Company (and after receipt of any required regulatory approvals), in accordance with the terms of this Agreement and applicable securities laws, acquire more than 9.9% of the then outstanding shares of Common Stock.
(ii) propose make any public announcement or nominate for election to the Board proposal with respect to, or publicly offer or propose, (A) any person whose nomination has not been approved by a majority form of the Board (excluding the Investor Designee, if any);
(d) directly business combination or indirectly, encourage, accept or support a tender, exchange acquisition or other offer transaction relating to a material amount of assets or proposal by any other Person or group (an “Offeror”) for securities of the Company or any of its subsidiaries, (if B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such offer or proposal would, if consummated, result in transaction involves a Change of Control of the Company; it being understood that the foregoing shall not prohibit the Investor from (x) acquiring Voting Securities, (y) selling or tendering its shares of Common Stock, and otherwise receiving consideration, pursuant to any such offer transaction or proposal is referred to as an “Acquisition Proposal”)(z) voting on any such transaction in accordance with Section 3;
(eiii) engage in, or knowingly assist in the engagement in (including, without limitation, engagement by use of or in coordination with a universal proxy card), any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, solicit in any solicitation of proxies (or consents written consents) with respect to, or propose from the holders of, any Voting Securities, or seek or otherwise become a participant “participant” in a solicitation (“solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”), to vote any securities of the Company (including, without limitation, by initiating, encouraging or seek to participating in any “withhold” or similar campaign), in each case, other than in a manner that is consistent with the Board’s recommendation on a matter;
(iv) advise or influence knowingly encourage any Person, person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner that is consistent with the Board’s recommendation on a matter or in connection with an Extraordinary Transaction;
(fv) deposit any other than in open market sale transactions where the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Investor to any Third Party with a known history of activism or known plans to engage in activism;
(vi) take any action in support of or make any proposal or request that constitutes or would result in: (A) advising, replacing or influencing any director or the management of the Company, including, without limitation, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) seeking to have the Company waive or make amendments or modifications to the Articles of Incorporation or the Bylaws, or other actions that could reasonably be expected to impede or facilitate a Change of Control, (D) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (E) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act (in each case, except as otherwise permitted by Sections 1 or 3 hereof);
(vii) knowingly and with the intent of consummating a Change of Control, communicate with shareholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act (other than in connection with an Extraordinary Transaction);
(viii) call or seek to call, or request the call of, alone or in concert with others, any meeting of shareholders, whether or not such a meeting is permitted by the Bylaws, including, without limitation, a “town hall meeting”;
(ix) deposit any shares of Common Stock or other Voting Securities in any voting trust or subject any securities shares of the Company Common Stock or other Voting Securities to any arrangement or agreement with respect to the voting of such securities, including the granting any shares of any proxy Common Stock or Voting Securities (other than pursuant to this Agreementcustomary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(gx) propose knowingly (ix) any mergerseek, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative(y) encourage, or (z) advise any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction removal of directors with respect to the CompanyCompany or knowingly (x) seek, in each case without (y) encourage, or (z) take any other action with respect to the prior written consent election or removal of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)any directors;
(hxi) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any other way participate in a any “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any securities Voting Security;
(xii) demand a copy of the Company;
(i) ’s list of shareholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of under any provision of this Section 2.1 Pennsylvania law providing for shareholder access to books and records (including this clause (i));
(jincluding, without limitation, lists of shareholders) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveCompany; provided, however, that nothing this Section 2(a)(xii) shall not apply to any such information requested by the Investor pursuant to Section 1;
(xiii) make any request or submit any proposal to amend or waive the terms of this Section 2 other than through non-public communications with the Company that would not be reasonably likely to trigger public disclosure obligations for any Party; or
(xiv) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action the Investor is prohibited from taking pursuant to this Section 2, or advise, assist, knowingly encourage or seek to persuade any person to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing.
(b) Notwithstanding anything to the contrary contained in Section 2(a) or elsewhere in this Section 2.1 Agreement, the Investor shall prevent, restrict, encumber, not be prohibited or limit in any mannerrestricted from: (A) the Investor or any communicating privately with members of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by or officers of the Company after regarding any matter in a manner consistent with communications that may be reasonably made by all shareholders of the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business CombinationCompany, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Party; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority (including, without limitation, any court or the SEC) (“Governmental Authority”) or stock exchange (each, an “Exchange”) or other self-regulatory organization (“SRO”) that has, or may have, jurisdiction over the Investor, provided, that a breach by the Investor Designee from performing its duties as a member of this Agreement does not give rise to the Boardapplicable requirement described in (A) and (B); or (C) publicly disclosing in a means or method not otherwise inconsistent with the Investor or any terms of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, how the Purchase Investor intends to vote or act with respect to any securities of the Company in connection with any Extraordinary Transaction submitted for a vote of the Company’s shareholders, or (D) communicating with shareholders of the Company and others in a manner that does not otherwise violate this Agreement.
(c) The provisions of Section 2(a) shall also not prevent the Investor from freely voting its shares of Common Stock (except as otherwise provided in Section 3).
(d) During the Standstill Period, the Investor shall refrain from taking any actions which could reasonably be expected to have the effect of encouraging or assisting any Third Party to engage in actions which, if taken by the Investor, would violate this Agreement.
(e) The Investor and the Company acknowledge that, other than (i) as restricted by the terms in this Agreement, Joint Venture Agreement(ii) applicable law, or (iii) in connection with Section 1, the Preferred Distributor AgreementInvestor shall conduct itself as, in each caseand be treated as, in accordance any other shareholder of the Company, with similar shareholder rights and access to management and the terms hereof Board. The Investor shall not have or claim any information rights beyond those afforded to all other shareholders (other than as limited or otherwise restricted by the provisions of Section 2(a)) and thereofacknowledges the Company’s securities disclosure obligations, including, without limitation, the Company’s Regulation FD obligations.
Appears in 1 contract
Sources: Cooperation Agreement (Ameriserv Financial Inc /Pa/)
Standstill. During Voce agrees that, during the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5Period it will not, and (iii) the date it will cause its respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases engage in any solicitation of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation (“solicitation” as such terms are defined in Regulation 14A under the Exchange ActAct of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), or seek to advise or influence any Personin each case, with respect to voting of any securities of the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(b) submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company;
(fd) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than with other members of Voce or one or more of its Affiliates or to the extent such a group may be deemed to result with the Company or any of their respective Affiliates as a result of this Agreement;
(e) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction (as defined below) that is not approved by a majority of the Board;
(f) call, seek to call, or to request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the stockholders of the Company;
(g) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than Voce and its Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 9.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by Voce which are not actually known by Voce to result in any transferee acquiring beneficial ownership of more than 9.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any securities of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require Voce to vote in favor of a Sale Transaction that was approved by the Board;
(h) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by Voce or its Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(i) request enter into any arrangements, understandings or propose agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to the Board or the Company (or engage, in any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));the foregoing; or
(j) make any public announcement regarding, take or cause or induce or assist others to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or inconsistent with any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit (x) Plants from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required in order to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its his fiduciary duties as a member director of the Board; Company or (Cy) solely with respect to any Sale Transaction that has been approved by a majority of the Investor Board and has been announced by the Company, Voce from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any of its Affiliates from exercising their respective rights, performing their respective obligations shares or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofproxies.
Appears in 1 contract
Sources: Board Appointment Agreement (Destination Maternity Corp)
Standstill. During Executive agrees that, for a period of two years from the period date of this Agreement, neither Executive, Spouse nor any of Executive's or Spouse's affiliates will (such periodor will cause or assist others to), without the “Standstill Term”) commencing as prior written consent of the First Closing Date and continuing until the later Company or its Board of Directors: (i) the second (2nd) anniversary of the Second Closing Dateacquire, (ii) the date on which the Investor ceases offer to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Boardacquire, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesagree to acquire, directly or indirectly, by purchase or otherwise, more than 1.0% of the voting securities or direct or indirect rights to acquire beneficial ownership more than 1.0% of Common Stock and/or Common Stock Equivalents and/or the voting securities of and issued by, the Company or direct or indirect any instrument that gives the Investor the economic equivalent parent or subsidiary thereof, or of ownership of an amount of securities any Successor (as defined below), or any assets of the Company or any parent or direct or indirect subsidiary or division thereof or of any such Successor, which may be outstanding on the date hereof or subsequently issued during such two year period; (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(bii) make a tenderor any in way participate in, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting "solicitation" of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation "proxies" (as such terms are defined used in Regulation 14A under the rules of the Securities Exchange Act), Commission) to vote or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust person or subject any securities of the Company to any arrangement or agreement entity with respect to the voting of such securitiesof, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company (or any Derivativeparent or direct or indirect subsidiary thereof); (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any similar extraordinary transaction involving the Company (or any parent or direct or indirect subsidiary thereof) or its (iior their) any recapitalization, restructuring, liquidation securities or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board assets; (a transaction described in clauses (iiv) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other "group” " (as such terms are used defined in the rules Section l3(d)(3) of the SEC Securities Exchange Act of 1934, as amended) in connection with respect to the Company or any securities of the Company;
foregoing; (iv) request otherwise act, alone or propose in concert with others, to seek control or influence the management, Board of Directors or policies of the Company (or any parent or direct or indirect subsidiary thereof); (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other persons in connection with any of the foregoing, or (viii) contact, discuss with, make comments to or otherwise provide information to, any analysts, major stockholders, reporters or other members of the media respecting the Company (or its parents or direct or indirect subsidiaries), or its (or their) plans. Executive and Spouse also agree during such period not to request the Company or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment to amend or waiver of waive any provision of this Section 2.1 paragraph (including this clause (i));
(jsentence) make any public announcement regarding, or take any action that could which might require the Company to make a public announcement regardingregarding the possibility of an extraordinary transaction involving the Company or its securities or assets. Notwithstanding the foregoing, Executive and Spouse shall be entitled to receive and own all securities distributed in respect of, or issued in exchange for, any voting securities owned by them which were not acquired in violation of this Agreement. As used herein, "Successor" shall mean any entity which in a potential Business Combination or any transaction succeeds to substantially all of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Company's assets or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any which acquires substantially all of its Affiliates from making confidentialstock so long as, nonpublic proposals to the Board for in either case, holders of a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Board; or (C) Company's voting securities immediately prior to such transaction beneficially own a majority of the Investor or any voting securities of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofsuch entity immediately thereafter.
Appears in 1 contract
Standstill. During (a) Except as otherwise set forth in or permitted by this Agreement, from the period date of this Agreement until the expiration of the Standstill Period (such periodas defined below), each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of the foregoing, agents and other representatives (collectively, the “Standstill TermRelated Persons” and each a “Related Person”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives without the Investor the economic equivalent of ownership of an amount of securities prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek engage in any solicitation of proxies or written consents to have called vote (or withhold the vote of) any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, or (ii) propose conduct any binding or nominate for election nonbinding referendum with respect to the Board any person whose nomination has not been approved by a majority voting securities of the Board (excluding the Investor DesigneeCompany, if any);
(d) or assist or participate in any other way, directly or indirectly, encourage, accept in any solicitation of proxies (or support a tender, exchange or other offer or proposal by written consents) with respect to any other Person or group (an “Offeror”) for voting securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a participant “participant” in a solicitation (“solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Exchange Act), to vote (or seek to advise or influence any Person, with respect to voting of withhold the vote of) any securities of the Company;Company;
(fii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any voting securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any course of conduct with the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders or by written consent;
(iv) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Restated Certificate of Incorporation of the Company, as amended (the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation submit a proposal or offer for, or make any communication in opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of the Company such that after giving effect to any arrangement such Acquisition, the Investor Group or agreement any of its Related Persons holds, directly or indirectly, in excess of a 13.1% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to a Voting Exempt Matter (as defined in Section 5);
(viii) engage in any short sale, forward contract or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(ix) seek to advise, encourage, support or influence any person with respect to the voting of such securities(or execution of a written consent in respect of), including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase disposition of any securities of the Company or any Derivative, or any similar transaction involving its subsidiaries;
(x) other than in open market sale transactions whereby the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent identity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlpurchaser is not known, is referred sell, offer or agree to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers;
(xi) take any action in support of or make any proposal or request that constitutes (or would constitute if taken), or make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, (B) any change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with stockholders of the Company or others;
(xiii) form, join or in any other way participate in a “any partnership, limited partnership, syndicate, syndicate or other “group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act or otherwise) with respect to the Company or any its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company;
’s list of stockholders or its other books and records or make any request under Section 220 of the General Corporation Law of the State of Delaware or other applicable legal provisions regarding inspection of books and records or other materials (iincluding stocklist materials) request or propose to the Board or of the Company (or any of its officerssubsidiaries;
(xv) commence, directorsencourage, Affiliates employeesjoin as a party, attorneyssolicit or support any litigation, accountantsarbitration, financial advisors and derivative action in the name of the Company or any class action or other professional representatives)proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, any amendment to amend, modify or waiver of any provision waive the terms of this Section 2.1 (including this clause (i));
(j) make any 4 other than through non-public announcement regardingcommunications with the Company, or take any action that could require which the Company may accept or reject in its sole and absolute discretion, that would not trigger public disclosure obligations for any member of the Investor Group or its Related Persons or reasonably be expected to make a trigger public announcement regarding, a potential Business Combination disclosure obligations for the Company or any of the matters set forth in clauses (a) through (i) above; Company Related Persons; or
(kxvii) enter into any discussions, negotiations, arrangements agreements or agreements understandings with any Person relating person or entity with respect to any action the foregoing actions referred Investor Group is prohibited from taking pursuant to in (a) through (i) above; providedthis Section 4, howeveror advise, that assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing contained in this Section 2.1 4 or elsewhere in this Agreement shall prevent, restrict, encumber, prohibit or limit in any manner: (A) restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company regarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, through any director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Related Person.
(b) For purposes of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.:
Appears in 1 contract
Sources: Cooperation Agreement
Standstill. During Each Investor agrees that, for the period commencing immediately following the payment of the Expense Reimbursement Amount pursuant to Section 3 (such period, the “Standstill TermReleases Effectiveness Time”) commencing as of and ending on the First Closing Date and continuing until the later earliest of (i) the second (2nd) one year anniversary of the Second Closing DateAgreement, or (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived material breach by the Company or of its obligations under this Agreement which is not cured within five (5) Business Days after written notice from any Investor (the Board“Standstill Period”), or as contemplated by this Agreement:
(a) other than Permitted Purchases neither it nor any of its controlled Affiliates will, and purchases it will cause each of Preemptive Right Sharesits controlled Affiliates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek submit any stockholder proposal (pursuant to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Rule 14a-8 promulgated by the stockholders SEC under the Exchange Act or otherwise) or any notice of the Companynomination or other business for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved (including by a majority way of the Board (excluding the Investor DesigneeRule 14a-11 of Regulation 14A), if any)other than as expressly permitted by this Agreement;
(dii) engage in, directly or indirectly, encourage, accept any “solicitation” (as defined in Rule 14a- 1 of Regulation 14A) of proxies (or support a tender, exchange written consents) or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation (as solicitation”(as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or to inspect any books and records of the Company;
(fiv) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) seek to place a Representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the Company;
(iviii) request other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or negotiate with or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to acquire, offer or propose to the Board acquire, or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any amendment interests in the Company’s indebtedness or waiver (B) an aggregate amount of any provision more than 9.99% of this Section 2.1 the Company’s outstanding Common Stock (including this clause (i));
(j) make any public announcement regardingwhich shall not include Common Stock issued in connection with a stock split, stock dividend or take any similar corporate action that could require initiated by the Company with respect to make a public announcement regarding, a potential Business Combination or any securities beneficially owned by any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Investors or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovetheir Affiliates); provided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(x) short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any liens against the Company’s capital stock, except that nothing contained an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xii) take any action challenging the validity or enforceability of any provisions of this Section 2.1 shall prevent4; or
(xiii) enter into any agreement, restrict, encumber, arrangement or limit in any manner: (A) the Investor or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, each of the Investors shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its Affiliates from making confidentialsole discretion, nonpublic proposals and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Board for a transaction involving a Business Combination following the public announcement Company, any stockholder proposal or other matter to be voted on by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member stockholders of the Board; or (C) Company and the Investor or any reasons therefor. This Section 4 shall not restrict the ability of its the Investors and each of their Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance and other Representatives to privately communicate with the terms hereof Company and thereofits Representatives so long as such private communications would not be reasonably expected to trigger public disclosure obligations for any party.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases Engine Group agrees that, from the date of this Agreement until the expiration of the Standstill Period, neither it nor any of its Affiliates or Associates will, and purchases it will cause each of Preemptive Right Sharesits Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”)manner, except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(bi) make a tenderengage in, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, any “solicitation” (ias defined in Rule 14a-l of Regulation 14A) seek to have called any meeting of the stockholders of the Company proxies (or propose any matter to be voted upon by the stockholders of the Company, written consents) or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any securities withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of shareholders) or grant a proxy with respect to the voting of the CompanyCommon Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(fii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Engine Group to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement through the execution of a joinder to this Agreement;
(iii) deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of Engine Group and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any proxy directors;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any Director or Directors for election to the Board, other than those nominated or supported by the Board;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or Director on the Board or seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders (other than pursuant to this Agreementsuch encouragement, support or influence that is consistent with the Company’s management or the Board’s recommendation in connection with such matter);
(gx) propose seek to call, or to request the call of, a special meeting of the Company’s shareholders, or make a request for a list of the Company’s shareholders or for any books and records of the Company;
(ixi) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (any of the transactions or events described in this subsection (xi), a “Sale Transaction”);
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any Common Stock of the Company representing in the aggregate (among Engine Group and its Affiliates and Associates) in excess of 9.9% of the Company’s assets then outstanding Common Stock (other than securities issued or businessespurchased by the Company pursuant to a stock split, purchase stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by Engine Group on the date of this Agreement);
(xiii) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any securities security of the Company or any Derivativeright decoupled from such underlying security held by Engine Group to any Third Party that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any similar beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case either (A) in a transaction involving approved by the Board or (B) to a Third Party who is entitled, and following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) of the General Rules and Regulations under the Exchange Act;
(xiv) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(xv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 6(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (iiy) any recapitalization, restructuring, liquidation or other extraordinary transaction solely with respect to any Sale Transaction that has been approved by a majority of the Board and has been announced by the Company, Engine Group from making public statements, engaging in each case without the prior written consent of the Board (a transaction described discussions with other shareholders, soliciting proxies or voting any shares or proxies in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);connection with such Sale Transaction.
(hb) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are As used in the rules of the SEC with respect to the Company or any securities of the Company;this Agreement:
(i) request or propose to the Board or terms “Affiliate” and “Associate” shall have the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters respective meanings set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement Rule 12b-2 promulgated by the Company after SEC under the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.Exchange Act;
Appears in 1 contract
Sources: Shareholder Agreement (Lojack Corp)
Standstill. During (a) Except as otherwise set forth in or permitted by this Agreement, from the period date of this Agreement until the expiration of the Standstill Period (such periodas defined below), each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of the foregoing, agents and other representatives (collectively, the “Standstill TermRelated Persons” and each a “Related Person”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives without the Investor the economic equivalent of ownership of an amount of securities prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek engage in any solicitation of proxies or written consents to have called vote (or withhold the vote of) any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, or (ii) propose conduct any binding or nominate for election nonbinding referendum with respect to the Board any person whose nomination has not been approved by a majority voting securities of the Board (excluding the Investor DesigneeCompany, if any);
(d) or assist or participate in any other way, directly or indirectly, encourage, accept in any solicitation of proxies (or support a tender, exchange or other offer or proposal by written consents) with respect to any other Person or group (an “Offeror”) for voting securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a participant “participant” in a solicitation (“solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Exchange Act), to vote (or seek to advise or influence any Person, with respect to voting of withhold the vote of) any securities of the Company;Company;
(fii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of shareholders) or deposit any voting securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any course of conduct with the purpose of causing shareholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote at any meeting of the Company’s shareholders or by written consent;
(iv) call or seek to call, or request the call of, alone or in concert with others, any meeting of shareholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Articles of Restatement of the Company, as amended (the “Articles”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation submit a proposal or offer for, or make any communication in opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of the Company such that after giving effect to any arrangement such Acquisition, the Investor Group or agreement any of its Related Persons holds, directly or indirectly, in excess of a 2.0% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to an Extraordinary Transaction (as defined in Section 6).
(viii) engage in any short sale, forward contract or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad- based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(ix) seek to advise, encourage, support or influence any person with respect to the voting of such securities(or execution of a written consent in respect of), including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase disposition of any securities of the Company or any Derivative, or any similar transaction involving its subsidiaries;
(x) other than in open market sale transactions whereby the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent identity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlpurchaser is not known, is referred sell, offer or agree to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), (A) is an Activist Shareholder or (B) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with no known history of activism or known plans to engage in activism;
(xi) take any action in support of or make any proposal or request that constitutes (or would constitute if taken), or make any statement or have a discussion with any known shareholder of the Company concerning or with the effect of: (A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, (B) any change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Articles or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with shareholders of the Company or others;
(xiii) form, join or in any other way participate in a “any partnership, limited partnership, syndicate, syndicate or other “group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act or otherwise) with respect to the Company or any its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company;
’s list of shareholders or its other books and records or make any request under Sections 2-512 and 2-513 of the MGCL or other applicable legal provisions regarding inspection of books and records or other materials (iincluding stocklist materials) request or propose to the Board or of the Company (or any of its officerssubsidiaries;
(xv) commence, directorsencourage, Affiliates employeesjoin as a party, attorneyssolicit or support any litigation, accountantsarbitration, financial advisors and derivative action in the name of the Company or any class action or other professional representatives)proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, any amendment to amend, modify or waiver of any provision waive the terms of this Section 2.1 (including this clause (i));
(j) make any 5 other than through non-public announcement regardingcommunications with the Company, or take any action that could require which the Company may accept or reject in its sole and absolute discretion, that would not trigger public disclosure obligations for any member of the Investor Group or its Related Persons or reasonably be expected to make a trigger public announcement regarding, a potential Business Combination disclosure obligations for the Company or any of the matters set forth in clauses (a) through (i) aboveCompany Related Persons; or
(kxvii) enter into any discussions, negotiations, arrangements agreements or agreements understandings with any Person relating person or entity with respect to any action the foregoing actions referred Investor Group is prohibited from taking pursuant to in (a) through (i) above; providedthis Section 5, howeveror advise, that assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing contained in this Section 2.1 5 or elsewhere in this Agreement shall prevent, restrict, encumber, prohibit or limit in any manner: restrict the Investor Group or its Related Persons from (A) the Investor or any communicating privately with members of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by or executive officers of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combinationregarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications; or (B) privately communicating to any of the Investor Designee from performing Group’s current investors publicly available factual information regarding the Company (it being understood by the Investor Group and its duties as a member current investors that such communications are to be confidential communications). The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, through any director of the Board; Company or (C) other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Related Person.
(b) For purposes of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.:
Appears in 1 contract
Sources: Cooperation Agreement (Independence Realty Trust, Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director Prior to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingTermination Date, except as approvedotherwise provided in this Agreement, invited or waived by without the Company or prior consent of the Board, the EC Parties shall not, and shall cause their respective Affiliates not to, directly or indirectly (in each case, except as contemplated permitted by this Agreement:):
(a) (i) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other than Permitted Purchases and purchases distributions or offerings made available to holders of Preemptive Right Sharesvoting securities of the Company generally on a pro rata basis), directly or indirectly, acquire beneficial ownership whether by purchase, tender or exchange offer, through the acquisition of Common Stock and/or Common Stock Equivalents and/or control of another person, by joining a group, through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company or beneficial ownership thereof or any voting rights decoupled from the underlying voting securities in excess of 4.99% of the Company’s then-outstanding Common Stock; or (ii) sell its shares of Common Stock other than in open market sale transactions or through a “Derivative”)broker or dealer where the identity of the purchaser is not known, except, nothing or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsunderwritten widely dispersed public offerings;
(b) (i) nominate, recommend for nomination, give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected (or in connection with any proposed stockholder action by written consent); (ii) submit, initiate, make or be a tenderproponent of any stockholder proposal for consideration at, exchange or bring any other public offer business before, any Stockholder Meeting (or in connection with any action by written consent); (iii) knowingly initiate, encourage or participate in any “withhold” or similar campaign with respect to acquire Common Stock and/or Common Stock Equivalentsany Stockholder Meeting;
(c) directly engage in any solicitation of proxies or indirectly, (i) seek consents with respect to have called any meeting the election or removal of the stockholders directors of the Company or propose any other matter to be voted upon by or proposal involving the stockholders Company or become a participant in any such solicitation of the Company, proxies or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)consents;
(d) directly initiate or indirectly, encourage, accept seek the convening of (or support a tender, exchange or other offer or proposal by assist any other Person in the convening of) any Stockholder Meeting (or group (an “Offeror”) for securities of the Company (if assist any other Person in seeking any 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”action);
(e) directly form, join or indirectly, solicit proxies in any way knowingly participate in any group or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence agreement of any Person, kind with respect to any voting of any securities of the Company, including in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with any other EC Party or one or more of its Affiliates and Associates that agree to be bound by the terms and conditions of this Agreement);
(f) deposit any voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy thereof (other than pursuant to any such voting trust, arrangement or agreement solely among the EC Parties and their Affiliates and otherwise in accordance with this Agreement);
(g) propose (i) seek publicly, alone or in concert with others, to amend any merger, consolidation, business combination, tender or exchange offer, purchase provision of the Company’s assets certificate of incorporation or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)bylaws;
(h) act demand an inspection of the Company’s books and records;
(i) engage or continue to engage or use any private investigations firm or other person to investigate any of the Company’s directors, officers or employees or any of the Company’s Representatives or use any report or findings of such firm or person;
(i) make any public or private proposal with respect to or (ii) make any public statement or otherwise seek to encourage or advise or assist any Person in so encouraging or advising with respect to: (A) any change in the identity, number or term of directors serving on the Board or the filling of any vacancies on the Board, (B) any change in the capitalization or dividend policy of the Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(k) initiate, make or in any way participate, directly or indirectly, in any Extraordinary Transaction (it being understood that the foregoing shall not restrict any EC Party from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company or from participating in any such transaction that has been approved by the Board, subject to the other terms of this Agreement) or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any such matter;
(l) publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of this Agreement;
(m) take any action challenging the validity or enforceability of this Section 3 unless the Company is challenging the validity or enforceability of this Section 3; or
(n) enter into any negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, facilitate encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussionsforegoing, negotiations, arrangements or agreements otherwise take or cause any action inconsistent with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Standstill. During The PL Capital Parties each agree that during the period Standstill Period (such periodas hereinafter defined), the “Standstill Term”) commencing PL Capital Parties and their affiliates or associates (as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director defined in Rule 12b-2 promulgated pursuant to the Board pursuant to Section 5Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall they will not do any of the following, except as approved, invited assist or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesencourage others to), directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities manner, without prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board of Directors of Alliance Bancorp:
(bi) make a acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift, tender, exchange or other public offer otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire Common Stock and/or Common Stock Equivalentsacquire, or securities convertible into or exchangeable for (collectively, an “Acquisition”), any securities of Alliance Bancorp, such that as a result of such of such Acquisition, the PL Capital Parties would maintain beneficial ownership in excess of 9.99% of the outstanding shares of Alliance Bancorp common stock;
(cii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (ias such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to have called advise, encourage or influence in any meeting manner whatsoever any person with respect to the voting of any voting securities of Alliance Bancorp;
(iii) form, join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the stockholders Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of Alliance Bancorp or otherwise in any manner agree, attempt, seek or propose to deposit any securities of Alliance Bancorp in any voting trust or similar arrangement, or subject any securities of Alliance Bancorp to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the Company group involving the PL Capital Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement);
(iv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (a) any of the assets, tangible and intangible, direct or indirect, of Alliance Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of Alliance Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any securities or assets of Alliance Bancorp;
(vi) otherwise act, alone or in concert with others, propose or to seek to offer to Alliance Bancorp or any of its shareholders any business combination, restructuring, recapitalization or similar transaction to or with Alliance Bancorp or the Bank or otherwise seek, alone or in concert with others, to control or change the management, Board of Directors or policies of Alliance Bancorp or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of Alliance Bancorp, nominate any person as a director of Alliance Bancorp who is not nominated by the then incumbent directors (provided that if there is a vacancy on the Alliance Bancorp Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the Alliance Bancorp Board of Directors or the Nominating and Governance Committee of the Alliance Bancorp Board of Directors for nominees to the Board of Directors pursuant to the nomination policy adopted by the Board of Directors), or propose any matter to be voted upon by the stockholders shareholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Alliance Bancorp;
(dvii) directly or indirectly, encouragesell, accept transfer or support a tender, exchange otherwise dispose of any interest in the shares of Alliance Bancorp common stock beneficially owned by the PL Capital Parties to any person that would reasonably be understood to be the beneficial owner of 5% or other offer or proposal by any other Person or group (an “Offeror”) for securities more of the Company (if such offer or proposal would, if consummated, result in a Change outstanding shares of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)Alliance Bancorp common stock;
(eviii) directly except in connection with the enforcement of this Agreement, initiate or indirectlyparticipate, solicit proxies by encouragement or consents otherwise, in any litigation against Alliance Bancorp or propose the Bank or seek their respective directors or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)officers, or seek to advise or influence in any Personderivative litigation on behalf of Alliance Bancorp, with respect to voting of any securities of the Company;except for testimony which may be required by law; or
(fix) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others to the voting of such securitiesdo, including the granting of or advise, assist or encourage others to do, any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in prohibited under clauses (i) through (viii) of this Paragraph 2, publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any Alliance Bancorp annual meeting of shareholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of Alliance Bancorp they or any of them beneficially own in favor of the nominees for election or reelection as director of Alliance Bancorp selected by the Board of Directors of Alliance Bancorp and agree otherwise to support such director candidates, and (ii2) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities other proposal submitted by any Alliance Bancorp shareholder to a vote of the Company;
(i) request or propose Alliance Bancorp shareholders, to vote all of the Alliance Bancorp shares they beneficially own in accordance with the recommendation of the Alliance Bancorp Board of Directors with respect to any such shareholder proposal. Notwithstanding anything in this Agreement to the Board contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇ or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth Substitute in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties his capacity as a member of Alliance Bancorp’s Board of Directors or the BoardBank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (C2) the Investor or any ability of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement, Agreement directly with the Purchase Agreement, Joint Venture AgreementPresident and Chief Executive Officer of Alliance Bancorp, or upon invitation, with other members of management or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofboard of directors of Alliance Bancorp.
Appears in 1 contract
Sources: Standstill Agreement (Alliance Bancorp, Inc. Of Pennsylvania)
Standstill. During The PL Capital Parties each agree that, for a period of time commencing at the period Closing and continuing for five years following the Closing (such period, the “Standstill TermPeriod”), they and their affiliates and associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) commencing as will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the First Closing Date and continuing until the later Board of (i) the second (2nd) anniversary Directors of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this AgreementCentral Bancorp:
(a) other than Permitted Purchases and purchases acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any direct or indirect beneficial ownership (within the meaning of Preemptive Right SharesRule 13d-3 under the Exchange Act) or any direct or indirect interest in any securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an “Acquisition”), any securities of Central Bancorp (“Securities”);
(b) make, or in any way participate in, directly or indirectly, acquire beneficial ownership alone or in concert with others, any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives “proxies” to vote (as such terms are used in the Investor the economic equivalent of ownership of an amount of securities proxy rules of the Company (a “Derivative”), except, nothing Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund any manner whatsoever any person with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalentsvoting of any voting securities of Central Bancorp;
(c) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting Securities of Central Bancorp;
(d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of Central Bancorp or (ii) direct or indirect rights, warrants or options to acquire any assets of Central Bancorp;
(e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any Securities or securities convertible or exchangeable into or exercisable for any Securities or assets of Central Bancorp;
(f) otherwise act, alone or in concert with others to seek to have called offer to Central Bancorp or any meeting of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with Central Bancorp or otherwise seek, alone or in concert with others to control or change the stockholders management, board of directors or policies of Central Bancorp or nominate any person as a director of Central Bancorp who is not nominated by the Company then incumbent directors, or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);Central Bancorp; or
(g) propose (i) announce an intention to do, or enter into any mergerarrangement or understanding with others to do, consolidation, business combination, tender or exchange offer, purchase any of the Company’s assets actions restricted or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in prohibited under clauses (a) through (gf) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Paragraph 2, or other group” as such terms are used in the rules of the SEC with respect publicly announce or disclose any request to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or be excused from any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in obligations of this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofParagraph 2.
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as Each member of the First Closing Date and continuing until Shareholder Group agrees that, during the later of (i) the second (2nd) anniversary of the Second Closing DateStandstill Period, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5he or it will not, and (iii) the date he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on which the Investor (including SK ecoplant and SPV) and his or its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingbehalf not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited directly or waived by the Company or the Board, or as contemplated by this Agreementindirectly:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership in excess of 17.5% of the outstanding shares of Common Stock and/or Common Stock Equivalents and/or any instrument that gives (based on the Investor the economic equivalent of ownership of an amount of securities latest annual or quarterly report of the Company (a “Derivative”filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), except, nothing in this other than the acquisition of equity-based compensation pursuant to Section 2.1(a) shall prevent 10 hereof and the exercise of any options or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decisionconversion of any convertible securities comprising such equity-making authority over investment or divestment decisionsbased compensation;
(b) make a tender, exchange submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other public offer business for consideration, or nominate any candidate for election to acquire Common Stock and/or Common Stock Equivalentsthe Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the New Director or any of their respective Affiliates as a result of this Agreement;
(d) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than the Shareholder Group and their Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 7, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or the New Director to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 6 hereof or this Section 7, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) request or propose to the Board or the Company (engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly value from a decline in the market price or indirectly, any amendment or waiver value of any provision of this Section 2.1 (including this clause (i))the Company’s securities;
(j) make enter into any public announcement regardingarrangements, understandings or agreements (whether written or oral) with, or take advise, finance, assist or encourage any action other person that could require the Company engages, or offers or proposes to make a public announcement regardingengage, a potential Business Combination or in any of the matters set forth in clauses (a) through (i) aboveforegoing; or
(k) enter into discussions, negotiations, arrangements take or agreements cause or induce or assist others to take any action inconsistent with any Person relating to of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, howeverthat, notwithstanding the foregoing, it is understood and agreed that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit not be deemed to prohibit (x) the New Director from engaging in any manner: (A) lawful act in his capacity as a director of the Investor or any of its Affiliates from making confidential, nonpublic proposals to Company that is either expressly approved by the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement or required in order to comply with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its his fiduciary duties as a member director of the Board; Company or (Cy) the Investor Shareholder Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies with respect to any Sale Transaction that has been approved by a majority of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated Board and has been announced by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCompany.
Appears in 1 contract
Sources: Shareholder Agreement (Intevac Inc)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approvedotherwise provided in this Agreement (including Section 13 (Mutual Nondisparagement)), invited or waived by without the Company or prior written consent of the Board, or as contemplated by this AgreementConsultant shall not, and shall cause his respective affiliates, not to, directly:
A. acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (a) except by way of stock dividends or other than Permitted Purchases and purchases distributions or offerings made available to holders of Preemptive Right Sharesvoting securities of the Company generally on a pro rata basis), directly or indirectly, acquire beneficial ownership whether by purchase, tender or exchange offer, through the acquisition of Common Stock and/or Common Stock Equivalents and/or control of another person, by joining a group, through swap or hedging transactions or otherwise, any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities of the Company (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, or other beneficial ownership interest in, 5% or more than of the then-outstanding shares of the Common Stock in the aggregate (the “DerivativeOwnership Cap”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, B. (i) seek nominate, recommend for nomination or give notice of an intent to have called nominate or recommend for nomination a person for election at any annual or special meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or any action by written consent of the Company’s stockholders in lieu thereof, and any adjournment, postponement, rescheduling or continuation thereof (a “Stockholder Meeting”) at which the Company’s directors are to be elected; (ii) propose initiate, encourage or nominate for participate in any solicitation of proxies in respect of any election contest or removal contest with respect to the Board Company’s directors; (iii) submit, initiate, make or be a proponent of any person whose nomination has stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; (v) call or seek to call, or request to call of, alone or in concert with others, any Stockholder Meeting, whether or not been approved such a meeting is permitted by a majority the Company’s Amended and Restated Certificate of Incorporation (as amended and as may be further amended from time to time, the Board “Certificate of Incorporation”) or the Amended and Restated Bylaws (excluding as amended and as may be further amended from time to time, the Investor Designee“Bylaws”), if any)including any “town hall meeting”; or (vi) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(d) directly C. form, join or indirectly, encourage, accept in any way participate in any group or support a tender, exchange or other offer or proposal by agreement of any other Person or group (an “Offeror”) for kind with respect to any voting securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer including in connection with any election or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, removal contest with respect to voting of any securities of the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting;
(f) D. deposit any voting securities of the Company in a any voting trust or subject any Company voting securities of the Company to any arrangement or agreement with respect to the voting thereof; E. seek publicly, alone or in concert with others, to amend any provision of such securities, including the granting Certificate of any proxy (other than pursuant to this Agreement)Incorporation or Bylaws;
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase F. demand an inspection of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) books and (ii) that would result in a Change of Control, is referred to records as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities stockholder of the Company;
G. make any public proposal with respect to: (i) request any change in the number or propose to term of directors serving on the Board or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other change in the Company’s management, governance, corporate structure, affairs or policies, (iv) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (v) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities and Exchange Act of 1934 (the “Exchange Act”);
H. enter into any negotiations, agreements or understandings with any third party with respect to any of its officersthe foregoing, directorsor advise, Affiliates employeesassist, attorneysencourage or seek to persuade any third party to take any action with respect to any of the foregoing, accountantsor otherwise take or cause any action inconsistent with any of the foregoing; I. publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, financial advisors and other professional representatives), directly modify or indirectly, any amendment or waiver of waive any provision of this Section 2.1 (including this clause (i));Agreement; or
(j) make any public announcement regarding, or J. take any action that could require challenging the validity or enforceability of this Section 4 or this Agreement unless the Company to make a public announcement regarding, a potential Business Combination is challenging the validity or any enforceability of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.;
Appears in 1 contract
Sources: Consulting Agreement (Cutera Inc)
Standstill. 3.1 During the period commencing on the Effective Date and ending on the date that is twelve (such period, 12) months after the Effective Date (the “Standstill TermPeriod”) commencing as ), without the prior written approval of a majority of the First Closing Date Independent Directors, the Stockholder shall not, and continuing until the later of shall not permit its Affiliates, subsidiaries, or associates to:
(i) acquire, offer or propose to acquire (whether publicly or otherwise), or agree or seek to acquire, or solicit the second (2nd) anniversary acquisition of, by purchase or otherwise, any equity, debt or equity-linked securities of the Second Closing DateCompany if, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5following such acquisition, and (iii) the date on which the Investor (including SK ecoplant and SPV) Stockholder and its Subsidiaries beneficially controlled Affiliates would own less than five percent (5.0%) securities of the Company representing more than [·]%2 of the issued and outstanding shares of Common Stock then issued and outstanding(as adjusted for any subdivision, the Investor combination, stock split, stock dividend or other recapitalization or reclassification);
(including SK ecoplant and the SPVii) and its Subsidiaries shall not do make, or in any way participate in any solicitation of any proxy to vote any of the followingVoting Shares (or other equity securities of the Company) with respect to any matter (including, except without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as approveda participant in support of all of the Company’s nominees including, invited without limitation, the nominees for Independent Directors pursuant to Article 1;
(iii) form, join or waived by in any way participate in, or enter into any agreement, arrangement or understanding with, a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any equity or equity-linked securities of the Company for purposes of the transactions contemplated by Section 3.1(i) or the BoardSection 3.1(ii), or deposit any Voting Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Voting Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Voting Shares (or other equity securities of the Company) (other than to a designated representative of the Company pursuant to a proxy statement of the Company), other than as contemplated by this Agreement:;
(aiv) other than Permitted Purchases and purchases of Preemptive Right Shares, directly commence or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or offer to commence (whether publicly or otherwise) any instrument that gives the Investor the economic equivalent of ownership of an amount of tender or exchange offer for any securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsits subsidiaries;
(bv) make a tendereffect or seek to effect (including, exchange without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other public person to effect or seek, offer or propose (whether publicly or otherwise) to acquire Common Stock and/or Common Stock Equivalentseffect or participate in any merger or business combination with the Company or Change in Control Transaction;
(cvi) directly call or indirectly, (i) seek to have called any call a meeting of the stockholders of the Company or propose initiate any matter to be voted upon stockholder proposal for action by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(kvii) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating other person with respect to any of the foregoing actions referred to in activities;
(aviii) through (i) above; providedadvise, howeverassist, that nothing contained in this Section 2.1 shall preventknowingly encourage, restrict, encumber, act as a financing source for or limit otherwise invest in any manner: (A) the Investor or other person in connection with any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.foregoing activities;
Appears in 1 contract
Sources: Letter Agreement Regarding the Purchase of a Majority of the Shares (CompoSecure, Inc.)
Standstill. During the Employee agrees that for a period of eighteen (such period, the “Standstill Term”18) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Employee’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Employee nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. During the Executive agrees that for a period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) 24 months from the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5of Executive’s termination of employment for any reason, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither Executive nor any of the followinghis affiliates or persons or entities acting at his direction or with his assistance will, except as approved, unless specifically invited or waived in writing by the Company or the Board, or as contemplated acting by this Agreement:
(a) other than Permitted Purchases and purchases resolution approved by a majority of Preemptive Right Sharesall members of the Board, directly or indirectly, acquire in any manner (the obligations pursuant to this Section 14 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership of Common Stock and/or Common Stock Equivalents and/or interest in any instrument that gives the Investor the economic equivalent of ownership of an amount of voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (a “Derivative”)or any Subsidiary, except, nothing other than the acquisition in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which aggregate of less than one-half of one percent of the Investor does not have or share decision-making authority over investment or divestment decisionsoutstanding voting securities of the Company;
(b) make a tendermake, exchange or other public offer in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to acquire Common Stock and/or Common Stock EquivalentsSection 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) seek to have called any meeting of the stockholders assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company, Company or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any)Subsidiary;
(di) directly make any publicly disclosed proposal, public statement, public inquiry or indirectlypublic disclosure of any intention, encourageplan, accept or support a tenderarrangement (whether written or oral) inconsistent with the foregoing, exchange or other offer make or disclose any request or proposal by to amend, waive or terminate any other Person or group (an “Offeror”) for securities provision of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose this Standstill or seek permission to or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence make any Person, public announcement with respect to voting of any securities provision of the Company;Standstill; or
(fj) deposit any securities of the Company in a voting trust announce an intention to do, or subject any securities of the Company to enter into any arrangement or agreement understanding with respect others (whether written or oral) to the voting of such securitiesdo, including the granting of or to finance, intentionally advise, enable, assist or encourage others to do any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets actions restricted or businesses, purchase prohibited under clauses (a) through (j) of any securities of the Company or any Derivativethis Standstill, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (gj) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicateof this Standstill, or other group” as such terms are used in the rules of the SEC with respect otherwise intentionally take, or solicit, or cause or encourage others to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectlytake, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance inconsistent with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases Purchaser agrees that, for a period of Preemptive Right Sharestwo (2) years from the date of this Agreement, unless specifically invited in writing by Parent, neither Purchaser nor any of its Affiliates will, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, : (i) effect or seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Companyeffect, or (ii) propose announce any intention to effect or nominate for election to the Board in any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by way encourage any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose effect or seek to effect or become a participant in a solicitation participate in, (as such terms are defined in Regulation 14A under the Exchange ActA) any acquisition of any securities (or beneficial ownership thereof), or seek rights or options to advise or influence any Person, with respect to voting of acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company;
Parent or any Subsidiary, (f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iB) any merger, consolidation, business combination, tender or exchange offer, purchase merger or other business combination involving Parent, any Subsidiary or assets of Parent or the Subsidiaries constituting a significant portion of the Company’s consolidated assets or businessesof Parent and the Subsidiaries, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (iiC) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the CompanyParent or any Subsidiary, other than in each case without the prior written consent connection with Purchaser exercising any of its rights under any of the Transaction Documents, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or consent to vote any voting securities of Parent or any Subsidiary (other than in connection with a solicitation by Parent or its Board (a transaction described in clauses (i) and of Directors); (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (as such terms are used in defined under the rules of the SEC Exchange Act) with respect to Parent; (iii) otherwise act, alone or in concert with others, to seek to control or influence the Company management or any securities Board of the Company;
Directors of Parent; (iiv) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company which would reasonably be expected to force Parent to make a public announcement regarding, a potential Business Combination or regarding any of the types of matters set forth in clauses (a) through (i) above; or
or (kv) enter into discussions, negotiations, any discussions or arrangements or agreements with any Person relating third party with respect to any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 shall prevent4.3(a) will prohibit or otherwise restrict the Transactions, restrictPurchaser’s satisfaction of contractual obligations to Royal Dutch Shell PLC or its subsidiaries existing as of the date hereof and as described in Section 5.1(C) of the Farmout Agreement, encumberany sale of Common Stock by Purchaser or the passive ownership by Purchaser of not more than 19.9% of the outstanding Common Stock in the aggregate through one or more transactions. If at any time during such period, or limit in any manner: (A) the Investor Purchaser or any of its Affiliates from making confidentialis approached by any third party concerning any transaction involving any assets, nonpublic proposals indebtedness or business of, or securities issued by, Parent or any Subsidiary, Purchaser will promptly inform Parent of the nature of such transaction and the parties involved.
(b) Notwithstanding anything to the Board for contrary contained in this Section 4.3, if at any time Parent consents to the taking of any action referred to in clauses (i)(B) through (i)(D), (ii) or (iii) of Section 4.3(a) by one or more third parties, Parent shall be deemed to have provided identical consent to Purchaser and its Affiliates, and this Section 4.3 shall be of no force or effect with respect to such consented-to actions during the pendency of such actions.
(c) Notwithstanding anything to the contrary contained in this Section 4.3, if at any time a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member third party does any of the Board; acts referred to in Section 4.3(a)(i)(B) or (C) the Investor or any and Section 4.3(b) does not apply, none of Purchaser and its Affiliates will be prohibited from exercising their respective rightstaking any actions set forth in Sections 4.3(a)(i)(B) or (C) during the pendency of such acts, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreementprovided that Purchaser shall provide Parent with written notice of any such action, the Purchase Agreementincluding a reasonably detailed description thereof, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofat least 72 hours prior to taking such action.
Appears in 1 contract
Sources: Securities Purchase Agreement (Far East Energy Corp)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases VIEX agrees that, during the Standstill Period, neither it nor any of its Affiliates or Associates under its control or direction will, and purchases it will cause each of Preemptive Right Sharessuch Affiliates and Associates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or in any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;manner:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called engage in any meeting solicitation of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation (“solicitation” as such terms are defined in Regulation 14A under the Exchange Act)Act of proxies or consents, or seek to advise or influence any Personin each case, with respect to voting of any securities of the Company;
(fii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock, other than a “group” that includes all or some of the persons or entities identified on Exhibit A, but does not include any other persons or entities not identified on Exhibit A as of the date hereof;
(iii) deposit any securities of the Company Common Stock in a any voting trust or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such securitiesvoting trust, including arrangement or agreement solely among the granting members of VIEX and otherwise in accordance with this Agreement;
(iv) seek, alone or in concert with others, representation on the Board, or take any other action with respect to the election or removal of any proxy director of the Company or the calling of any meeting or referendum of stockholders or the taking of any action by written consent;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, or (B) make any offer or proposal (with or without conditions and whether public or private), with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its Affiliates;
(vi) commence or threaten any action or proceeding (other than pursuant any action or proceeding to enforce the terms of this Agreement);
(g) propose (i) against the Company or any merger, consolidation, business combination, tender of its Affiliates or exchange offer, purchase of the Company’s assets or businesses, purchase of make any securities demand for access to books and records of the Company or any Derivativeof its Affiliates;
(vii) make any request or submit any proposal seeking to amend or waive any of the terms of this Agreement; or
(viii) advise, encourage, support or influence, or seek to advise, encourage, support or influence, any similar transaction involving the Company person or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction entity with respect to the Company, in each case without taking of any action or the prior written consent making of any statement by any person or entity of the Board (a transaction described types enumerated in clauses (i) through (vii).
(b) For the purposes of this Agreement, “Standstill Period” shall mean the period commencing upon the execution and delivery of this Agreement and ending on the earliest of (i) the completion of the Next Annual Meeting, (ii) in the event that would result three (3) New Directors are not appointed to the Board, or in a Change the event any of ControlMessrs. Mutch, is referred to as a “Business Combination”);
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ has not resigned from the Board, within ninety (h90) act in concert with any Third Party to take any action in clauses (a) through (g) above, days from the date of this Agreement or, directly or indirectlyon the ninety-first (91st) day after the date of this Agreement, formunless, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities appointment of the Company;
(i) request New Directors or propose in the event any of Messrs. Mutch, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ has not resigned from the Board, the failure to appoint such New Directors or the failure of Messrs. Mutch, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ to resign from the Board is the result of VIEX unreasonably withholding its approval with respect to one or more proposed New Directors as determined by a judicial finding (which has not been reversed or overturned) by a court specified in Section 13 in which the Company parties to this Agreement participated, and (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision iii) a breach of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement Agreement by the Company. The Company after the Second Closing Date agrees that it has entered into a definitive agreement with a Third Party will accept stockholder nominations for a transaction involving a Business Combination; (B) director and proposals of business for the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rightsNext Annual Meeting until June 30, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof2017.
Appears in 1 contract
Standstill. During (a) Each TPG Shareholder agrees that, until the period (such period, the “Standstill Term”) commencing as earlier of the First Closing Date and continuing until the later of three (i3) the second (2nd) year anniversary of the Second Closing Date, (ii) date hereof or the date on which such TPG Shareholder does not Beneficially Own any Company Ordinary Shares, without the Investor ceases to have prior written consent of at least a majority of the right to designate a director to the Board pursuant to Section 5Board, such TPG Shareholder shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(iiii) acquire, agree to acquire, propose or offer to acquire, or knowingly facilitate the date on which the Investor acquisition of, any Company Ordinary Shares (including SK ecoplant and SPV) and its Subsidiaries beneficially own less other than five acquisitions involving no more than three percent (5.03%) of the shares fully-diluted voting power of Common Stock then issued and outstandingthe Company Ordinary Shares in the aggregate and, in any event, such that the Investor (including SK ecoplant and the SPV) and its Subsidiaries TPG Shareholders, together with their controlled Affiliates, shall not do own, in the aggregate, 25% or more of the then-outstanding Company Ordinary Shares), other than as a result of any stock split, stock dividend or subdivision of Company Ordinary Shares or in connection with any of the followingtransactions contemplated by the Merger Agreement;
(ii) deposit any Company Ordinary Shares into a voting trust or similar contract or subject any Company Ordinary Shares to any voting agreement, except as approvedpooling arrangement or similar arrangement or other contract, invited or waived grant any proxy with respect to any Company Ordinary Shares, in each case, other than any such voting trust, voting agreement, pooling arrangement or other contract, solely among the TPG Shareholders;
(iii) other than in connection with any matter recommended by the Board, enter, agree to enter or propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its subsidiaries or an acquisition of 10% or more of the assets of the Company and its subsidiaries;
(iv) other than in connection with any matter recommended by the Board, make or as contemplated by this Agreement:
participate or engage in (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”subject to Section 5.1(b)), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting “solicitation” of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined in under Regulation 14A under the Exchange Act)) to vote any Company Ordinary Shares, or seek to advise or influence disregarding clause (iv) of Rule 14a-1(l)(2) and including any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than otherwise exempt solicitation pursuant to this AgreementRule 14a-2(b);
(gv) propose (i) publicly disclose any mergerintention, consolidationplan, business combination, tender arrangement or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeother contract prohibited by, or inconsistent with, the foregoing;
(vi) advise or knowingly assist or knowingly encourage or enter into any similar transaction involving the Company negotiations or (ii) any recapitalization, restructuring, liquidation agreements or other extraordinary transaction contracts with any other persons in connection with the foregoing;
(vii) with respect to the Company, in each case without the prior written consent any of the Board foregoing, (a transaction described in clauses (iA) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in (subject to Section 5.1(b)) a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the meaning of Section 13(d)(3) of the Exchange Act and the rules of the SEC and regulations thereunder) with respect to any common stock; (B) call, or seek to call, a meeting of the shareholders of the Company or initiate any securities shareholder proposal for action by shareholders of the Company;
(i) request or propose Company with respect to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), the foregoing or (C) directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could would reasonably be expected to require the Company to make a public announcement regardingregarding the possibility of a business combination, a potential Business Combination merger, sale of assets or other type of transaction or matter described in this Section 5.1;
(viii) present at any annual meeting or any special meeting of the matters set forth Company’s shareholders or through action by written consent any proposal for consideration for action by shareholders or propose any nominee for election to the Board or seek the removal of any member of the Board of Directors, in clauses (a) through (i) aboveeach case, subject to the rights of the TPG Shareholders pursuant to Section 2.2; or
(kix) enter into discussions, negotiations, arrangements or agreements with any Person relating to request the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 5.1; provided that the TPG Shareholders may confidentially request the Company to amend or waive any provision of this Section 5.1 in a manner that would not be reasonably likely to require public disclosure by the Company or such TPG Shareholders.
(b) Notwithstanding the foregoing provisions of this Section 5.1, the foregoing provisions shall not, and are not intended to:
(i) prohibit any TPG Shareholder or any of its controlled Affiliates from privately communicating with, including making confidentialany offer or proposal to, nonpublic proposals the Board;
(ii) restrict in any manner how any TPG Shareholder or any of its controlled Affiliates votes their Company Ordinary Shares;
(iii) restrict the manner in which any TPG Director may (A) vote on any matter submitted to the Board for a transaction involving a Business Combination following or the public announcement by shareholders of the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; Company, (B) participate in deliberations or discussions of the Investor Designee Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from performing its taking any action prohibited by his or her legal duties and obligations as a member of the Board; or or
(Civ) the Investor restrict any TPG Shareholder or any of its Affiliates Permitted Transferees from exercising their respective rightsTransferring any Subject Shares to any Permitted Transferees of such TPG Shareholder or any successor of such TPG Shareholder that, performing their respective obligations in any such case, agrees to be bound by the provisions contained in this Agreement.
(c) Nothing set forth in this Section 5.1 shall prohibit, restrict or otherwise consummating limit the ability of any TPG Shareholder or any Affiliate of any TPG Shareholder from engaging in any hedging and derivative transactions contemplated by if such transactions are with one or more counterparties that are nationally recognized reputable banking organizations, solely to the extent such transactions do not have the intention or purpose of circumventing the transfer restrictions contained in this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During The ▇▇▇▇▇▇▇ Group agrees that, from the period (such period, date of this Agreement until the “Standstill Term”) commencing as expiration of the First Closing Date and continuing until the later Standstill Period, neither it nor any of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5its Affiliates or Associates or Family Members will, and (iii) the date on which the Investor (including SK ecoplant it will cause each of its Affiliates and SPV) Associates and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstandingFamily Members not to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do directly or indirectly, in any manner, acting alone or in concert with others, take any of the followingfollowing actions or advise, except as approvedrecommend, invited request, encourage, solicit, influence or waived by induce any other person to take any of the Company or the Boardfollowing actions, or as contemplated by this Agreementannounce any intention to take any of the following actions:
(a) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, or any notice of nomination or other than Permitted Purchases and purchases of Preemptive Right Sharesbusiness for consideration, or nominate any candidate for election to the Board;
(b) engage, directly or indirectly, acquire beneficial ownership in any “solicitation” (as defined in Rule 14a-1 of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent Regulation 14A) of ownership of an amount of securities of the Company proxies (or written consents) or otherwise become a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce or seek to advise advise, encourage or influence any Person, other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any voting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(c) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(d) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(fe) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the voting stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement or any of their respective Affiliates or Associates);
(f) deposit any shares of voting stock of the Company in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or Observer on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(h) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any securities of the Companyrights or options to acquire any such assets or business from any person;
(i) other than at the express written request of the Board, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company; provided, however, nothing herein shall limit the ability of the Investors to disclose, publicly or otherwise, how they intend to vote with respect to any announced tender offer, exchange offer, merger, consolidation, business combination or other change-of-control transaction that is being submitted for the approval of shareholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(j) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or propose advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(k) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(l) take any action challenging the validity or enforceability of any provisions of this Section 3;
(m) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities;
(n) make any public announcement or statement involving the Company or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly directors or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) aboveAffiliates; or
(ko) enter into discussions, negotiations, arrangements or agreements communicate with any Person relating to employee of the foregoing actions referred to Company about Company-related matters without the prior consent of the Chairman, as determined in (a) through (i) above; providedhis sole discretion. Notwithstanding the foregoing, however, that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, prohibit or limit in any mannerrestrict the ▇▇▇▇▇▇▇ Group from: (A) communicating privately with the Investor Board, Chief Executive Officer, Chief Financial Officer, the Chief Administrative Officer of the Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3, (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investors or any of its their respective Affiliates from making confidentialor Associates, nonpublic proposals to provided that a breach by Investor of this Agreement is not the Board for a transaction involving a Business Combination following cause of the public announcement applicable requirement, or (D) voting any shares beneficially owned by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a any member of the Board; or ▇▇▇▇▇▇▇ Group in any way they deem appropriate. As used in this Agreement:
(Ci) the Investor terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include persons who become Affiliates or Associates of any person subsequent to the date of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.;
Appears in 1 contract
Sources: Board Observer and Standstill Agreement (Hill International, Inc.)
Standstill. During Further, at all times during the period Standstill Period, each member of the Barington Group will not, directly or indirectly, and will cause each of its Affiliates not to, directly or indirectly:
(such perioda) Solicit proxies or written consents of stockholders, conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities or become a “Standstill Termparticipant” (as defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any person or entity not party to this Agreement (a “Third Party”) commencing in any “solicitation” of any proxy, consent or other authority (as defined under the Exchange Act) to vote any shares of the Voting Securities. (b) Encourage, advise or influence any other person or assist any Third Party in encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum with respect to the Company or the Voting Securities.
(c) Form or join any partnership, limited partnership, syndicate or other group, other than the Barington Group (as comprised as of the First Closing Date and continuing until the later date of (ithis Agreement), including a group as defined under Section 13(d) the second (2nd) anniversary of the Second Closing DateExchange Act, with respect to the Voting Securities, or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clause (iia) above.
(d) Present any proposal (whether pursuant to Rule 14a-8 under the date on which the Investor ceases to have the right to designate a director Exchange Act or otherwise) for consideration for action by stockholders, propose any nominee for election to the Board pursuant or seek to Section place on, or remove from, the Board, a director.
(e) Grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for the 2014 Annual Meeting or any subsequent annual meeting during the Standstill Period) or deposit any of the Voting Securities held by the Barington Group in a voting trust or subject them to a voting agreement or other arrangement of similar effect.
(f) Other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any right decoupled from such underlying security held by the Barington Group to any Third Party that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) % or more of the shares of Common Stock then issued and outstandingoutstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any aggregate of 5% or more of the followingshares of Common Stock outstanding at such time, except as approvedin each case in a transaction approved by the Board.
(g) Make any request under Section 220 of the DGCL, invited other than any request made by a director under Section 220(d).
(h) Threaten, file or waived by otherwise commence or cause to be threatened, filed or otherwise commenced, any complaint, litigation, claim, action, suit or similar proceeding (collectively, a “Legal Proceeding”) against the Company or the Boardits Affiliates, directors, officers or as contemplated by this Agreement:
employees (a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, except (i) seek to have called any meeting of solely in connection with enforcing the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, Barington Group’s rights hereunder or (ii) propose any Legal Proceeding in a capacity other than as a stockholder or nominate for election director of the Company and only with respect to matters not relating to corporate activities or actions) unless approved in writing in advance by the Company.
(i) Make any public statement or statement reasonably likely to be made public (including by requiring the Company to make public disclosure) regarding the Company or its Affiliates, officers, directors, employees, businesses or strategies, unless approved in writing in advance by the Company (except to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeextent, if any, required to be disclosed by the Barington Group in a Schedule 13D filing or in response to a court order or a judicial or regulatory demand);.
(dj) directly Effect, seek to effect or indirectly, encourage, accept in any way assist or support a tender, exchange facilitate any other person in effecting or other seeking to effect any:
(i) tender offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such exchange offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any acquire securities of the Company;
(fii) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) interest in any merger, consolidation, material asset or business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivativeof its subsidiaries;
(iii) merger, acquisition, share exchange or any similar transaction other business combination involving the Company or any of its subsidiaries; or
(iiiv) any recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to the Company, in each case without the prior written consent Company or any of the Board (a transaction described in clauses (i) and (ii) that would result in a Change its subsidiaries or material portion of Control, is referred to as a “Business Combination”);its or their businesses.
(hk) act Request in concert writing any waiver, consent under or any amendment of, any provision of this Agreement.
(l) File or commence any Legal Proceeding to contest the validity of this Section 3 or to seek a release from any restriction contained in this Section 3.
(m) Enter into any discussion, negotiation, agreement or understanding with any Third Party with respect to the foregoing or advise, assist, encourage or seek to persuade any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to foregoing. For the Board or avoidance of doubt, the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision provisions of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 3 shall prevent, restrict, encumber, or not limit in any manner: (A) respect the Investor actions of any director of the Company in his or any of its Affiliates from making confidentialher capacity as such, nonpublic proposals recognizing that such actions are subject to such director’s fiduciary duties to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing and its duties as a member stockholders. For purposes of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement“Standstill Period” means the period from the date hereof until 90 days prior to the date of the annual meeting of stockholders of the Company to be held in 2015 (the “2015 Annual Meeting”) or, Joint Venture Agreementif earlier, 10 days prior to any advance notice deadline for making director nominations at the 2015 Annual Meeting; provided, that the Standstill Period will be extended as set forth below:
(n) If the Company recommends (or has notified Barington in writing of its commitment to recommend) that its stockholders vote for the Preferred Distributor Agreementre-election of the New Nominees at the 2015 Annual Meeting (regardless of whether the New Nominees agree to stand for re-election) and supports the New Nominees for election in no less rigorously and favorably a manner than it supports all of its other nominees, then the Standstill Period will continue until 90 days prior to the date of the annual meeting of stockholders of the Company to be held in 2016 (the “2016 Annual Meeting”) or, if earlier, 10 days prior to any advance notice deadline for making director nominations at the 2016 Annual Meeting.
(o) Notwithstanding anything in this Agreement to the contrary, until the end of the Standstill Period, the Barington Group will cause all Voting Securities with respect to which it has any voting authority, whether owned of record or beneficially owned, as of the record date for any annual or special meeting of stockholders or in connection with any solicitation of stockholder action by written consent (each a “Stockholders Meeting”) within the Standstill Period, in each casecase that are entitled to vote at any such Stockholders Meeting, in accordance to be present for quorum purposes and to be voted at all such Stockholders Meetings or at any adjournments or postponements thereof (i) for all directors nominated by the Board for election at such Stockholders Meeting and (ii) for all other routine matters such as the Company advisory vote on executive compensation and ratification of auditors. In the event that the Company does not nominate the New Nominees for re-election at the 2015 Annual Meeting, the Standstill Period ends and any member of the Barington Group nominates, or publicly announces an expectation that it will nominate, candidates for election to the Board at the 2015 Annual Meeting, the New Nominees shall resign from the Board simultaneously with the terms hereof and thereofany such nomination or public announcement.
Appears in 1 contract
Standstill. During Each of CD&R Fund and the period (such periodPurchaser Parties agree that during the Standstill Period, without the “Standstill Term”) commencing as prior written approval of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing DateCompany Board, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant CD&R Fund and the SPV) and its Subsidiaries Purchaser Parties shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesnot, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or and shall cause their respective Affiliates not to (either individually, or in concert with any instrument that gives the Investor the economic equivalent of ownership of an amount of securities other Person, or as a “group” (as such term is used in Section 13(d)(3) of the Company (a “Derivative”Exchange Act), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;):
(b1) acquire, offer or seek to acquire, agree to acquire or make a tender, exchange or other public offer proposal to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek except in nonpublic communications that would not reasonably be expected to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of require the Company, the Purchaser Parties, any of their respective Affiliates or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person to make any public announcement or group (an “Offeror”) for securities other disclosure with respect thereto, including pursuant to Section 13 of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), by purchase or otherwise, of record or through Beneficial Ownership, directly or indirectly, any Equity Securities, loans or debt securities of the Company or any of its Subsidiaries or direct or indirect rights to acquire any Equity Securities, loans or debt securities of the Company or any of its Subsidiaries, any securities or rights convertible into or exchangeable for any such Equity Securities, loans or debt securities or any options or other derivative securities or contracts or instruments in any way related to the price of Equity Securities, loans or debt securities of the Company or any of its Subsidiaries or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding any issuance by the Company or any Subsidiary thereof of any of the foregoing (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations); provided, that notwithstanding the foregoing or any other limitation imposed by this Agreement, CD&R Fund, Purchaser Parties and their respective Affiliates shall be permitted to acquire shares of Common Stock in the open market or otherwise so long as, after giving effect to the acquisition thereof, CD&R Fund, Purchaser Parties and their respective Affiliates, in the aggregate, would not Beneficially Own or have economic exposure to greater than 19.9% of the then outstanding Common Stock assuming the conversion into Common Stock of all shares of Preferred Stock held by the CD&R Fund, the Purchaser Parties and their respective Affiliates; provided further that, for the avoidance of doubt, the foregoing limitation shall in no manner limit the Company’s obligation to pay dividends or any other premiums (including redemption premiums) on the Preferred Stock in accordance with the provisions set forth in the Certificate of Designation (and, for purposes of the foregoing calculation, the CD&R Fund, Purchaser Parties and their respective Affiliates’ Beneficial Ownership and economic exposure shall not be impacted by any such premiums or dividends to the extent in excess of 19.9%);
(2) other than solely to effectuate the nomination and election of the Purchaser Designees pursuant to Section 4.8, make or in any way participate or engage in any “solicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person, Person with respect to voting of of, any securities of the Company;
(f) deposit any voting securities of the Company in or any of its Subsidiaries, or call or seek to call a voting trust or subject any securities meeting of the Company to Company’s stockholders (or action by written consent in lieu thereof) or initiate or make any arrangement or agreement stockholder proposal for action by the Company’s stockholders, other than with respect to the voting of such securities, including the granting designation of any proxy (other than Purchaser Designees pursuant to this Agreement)Agreement or the solicitation of “proxies” or consents with respect to the election of Persons nominated to be directors by the Company Board, seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(g3) make any announcement with respect to, or offer, propose or indicate an interest in (iin each case with or without conditions) (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the Company’s assets of the Company or businessesits Subsidiaries, purchase of or any securities other extraordinary transaction involving the Company or any Subsidiary of the Company or any Derivativeof their respective securities or assets, or enter into any negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person (other than advisors of the CD&R Fund, the Purchaser Parties and their respective Affiliates, in such advisors’ capacity as such) regarding any of the foregoing;
(4) effect or seek to effect (including by entering into negotiations, agreements or understandings with any third person), offer or propose (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act) to effect, or cause or participate in, or in any way assist or facilitate (including through the provision of financing) any other Person to effect or seek, offer or propose to effect or participate in a merger, consolidation, division, acquisition or exchange of any Equity Securities of the Company or any Subsidiary thereof or any material portion of the assets thereof, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)its Subsidiaries;
(h5) act otherwise act, alone or in concert with any Third Party others, to take any action in clauses (a) through (g) aboveseek to control or influence, or, directly or indirectly, form, join or in any way participate in a “partnershipmanner, limited partnershipmanagement or the Company Board, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companyits Subsidiaries;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j6) make any public announcement regardingproposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) other than in respect of purchases of Common Stock not prohibited by clause (1), take any action that could would reasonably be expected to require the Company to make a public announcement regarding, regarding the possibility of a potential Business Combination transaction or any of the matters set forth events described in clauses this Section 4.10;
(a8) enter into any negotiations, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) through with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (ias such term is used in Section 13(d)(3) aboveof the Exchange Act) with any third party with respect to any securities of the Company or its Subsidiaries or otherwise in connection with any of the foregoing;
(9) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 4.10, provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.10, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(10) contest the validity of this Section 4.10 or make, initiate, take or participate in any demand or action (legal or otherwise) to alter or terminate any provision of this Section 4.10;
(11) deposit any Equity Securities owned thereby (whether Beneficial Ownership or record ownership) in any voting trust or subject any such Equity Securities to any arrangement or agreement (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) with respect to the voting of any such Equity Securities, other than any such voting trust, arrangement or agreement solely among CD&R Fund, the Purchaser Parties and their respective Affiliates and granting proxies in solicitations approved by the Board;
(12) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that derives any significant part of its value from a decline in the market price or value of any of the securities or loans of the Company or its Subsidiaries; or
(k13) enter into discussionsadvise, negotiationsassist, arrangements knowingly encourage or agreements with direct any Person relating to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing actions referred to in (a) through (i) aboveforegoing; provided, however, that nothing contained in this Section 2.1 shall prevent4.10 will limit (1) the Purchaser Parties’ ability to submit on a confidential basis any communication or proposal to the Company Board that would not reasonably be expected to require the Company, restrictthe Purchaser Parties, encumberany of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act, (2) the Purchaser Parties’ ability to vote (subject to the terms of this Agreement and other Transaction Documents) or Transfer (subject to Section 4.7 and the other Transaction Documents) their shares of Preferred Stock or Common Stock, or limit in any manner: otherwise exercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (A3) the Investor preemptive rights of any Purchaser Party pursuant to Section 4.9, or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B4) the Investor ability of any Purchaser Designee from performing its duties to act in his or her capacity as a member of the Company Board; , including, but not limited to, his or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations her ability to vote or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, exercise his or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofher fiduciary duties.
Appears in 1 contract
Standstill. During 2.1 Separate and apart from the duties and responsibilities of the Shareholder Director (as defined below), the Shareholder agrees that, until the date that is eighteen (18) months from the Closing, except in the case of Section 2.1(d) below, which shall continue until the date that is thirty-six (36) months from the Closing, at which times the standstill period shall end (the “Standstill Period”), (unless specifically requested in writing by the Company, acting through a resolution of a majority of Company’s directors), it shall not, and shall cause each of its controlled Affiliates (other than any Non-Private Equity Business (as defined below) of the Shareholder or its Affiliates) (such periodcontrolled Affiliates, together with the Shareholder, the “Standstill TermPrincipal Shareholder Affiliates”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
to: (a) other than Permitted Purchases and purchases of Preemptive Right Sharesmake, or in any way participate in, directly or indirectly, acquire beneficial ownership any “solicitation” of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation proxies” (as such terms are defined used in Regulation 14A under the Exchange Act), proxy rules of the SEC) or consents to vote or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities other stockholder of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any voting securities of the Company 2 (b) seek, alone or any Derivativein concert with others, representation on the Board (other than to ensure compliance with the terms of this Agreement) or otherwise seek, or knowingly encourage any similar transaction involving person, to submit nominations in furtherance of a “contested solicitation” for the Company election or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction removal of directors with respect to the Company or, except through the Shareholder Director or Observer, acting in such Shareholder Director’s or Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company, in each case without seek or knowingly encourage any third Person with respect to the prior written consent election or removal of the Board any directors; (a transaction described in clauses (ic) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Exchange Act) with respect to Common Stock or Common Stock Equivalents; (d) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in , through swap or hedging transactions any short sale (whether or not against the rules box) or any purchase, sale or grant of the SEC any right (including, without limitation, any put or call option) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Shares or otherwise, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Principal Shareholder Affiliates owning, controlling or otherwise having any beneficial or other ownership interest in more than 19.9% of Common Stock outstanding at such time; provided, that, nothing herein will require Common Stock to be sold to the extent that the Principal Shareholder Affiliates, collectively, exceed the ownership limit under this clause (c) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock; (e) except through the Shareholder Director or Observer, acting in such Shareholder Director’s or Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company;
(i) request , otherwise act, alone or propose in concert with others, to seek to control, advise, change or influence the Board or the Company (or any management, board of its officers, directors, Affiliates employeesgoverning instruments, attorneys, accountants, financial advisors and other professional representatives), directly policies or indirectly, any amendment or waiver affairs of any provision of this Section 2.1 the Company; (including this clause (i));
(jf) make any public announcement regardingdisclosure, or take any action that could require the Company to make a any public announcement regardingdisclosure, a potential Business Combination or with respect to any of the matters set forth in clauses this Section 2.1; (g) disclose any intention, plan or arrangement inconsistent with the foregoing; or (h) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other Persons in connection with any of the foregoing.
2.1 The restrictions set forth in Section 2.1 shall not apply if any of the following occurs: (a) through in the event that the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (iincluding, but not limited to, beneficial ownership) abovevoting securities of the resulting corporation having 50% or less of the total voting power of the outstanding voting securities; or(b) in the event that a tender offer or exchange offer for at least 50.1% of the outstanding voting securities of the Company is commenced by a third Person; or 3 (c) the Company solicits from one or more Persons or enters into discussions with one or more Persons regarding, a proposal with respect to a merger of, or a business combination transaction involving, the Company, in each case without similarly soliciting a proposal from the Shareholder, or the Company makes a public announcement that it is seeking to sell itself and/or explore strategic alternatives and, in such event, such announcement is made with the approval of its Board of Directors.
(k) enter into discussions, negotiations, arrangements or agreements with 2.2 Nothing in this Section 2 shall restrict the Shareholder from making any Person relating proposal directly to the foregoing actions referred Board of Directors on a confidential basis or from voting its Common Stock or Common Stock Equivalents in any manner the Shareholder and its Principal Shareholder Affiliates determine in their sole discretion.
2.3 If the terms of this Section 2 conflict in any way with the provisions of the Confidentiality Agreement, then the provisions of this Section 2 shall control. The Confidentiality Agreement shall terminate upon the occurrence of the Effective Time, but shall continue in full force and effect until the Effective Time, and thereafter, the confidentiality obligations set forth in Section 5 below shall continue in full force and effect in accordance with the terms of this Agreement.
2.4 For purposes of this Agreement, “Non-Private Equity Business” shall mean any business or investment of the Shareholder and its Affiliates distinct from the business of primarily making investments as conducted the Shareholder and its Affiliates; provided, that such business or investment shall not be deemed to in be distinct from such private equity business if and at such time that (a) through any confidential information with respect to the Company or its Subsidiaries is made available to investment professionals of such business or investment who are not involved in the private equity business and who are involved in such other business or investment or (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (Ab) the Investor Shareholder or any of its Affiliates from making confidential, nonpublic proposals instructs any such business or investment to the Board for a transaction involving a Business Combination following the public announcement take any action that would violate any provision of this Agreement had such action been taken directly by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofShareholder.
Appears in 1 contract
Sources: Principal Shareholder Agreement
Standstill. During For the period (such period, the “Standstill TermPeriod”) commencing as of on the First Closing Date date hereof and continuing until ending on the later of earlier of: (i) the second (2nd) anniversary date which is six months from the date of the Second Closing Date, this Agreement; and (ii) the date on which a person not affiliated with Purchaser or its associates (as such term is defined in Rule 12b-2 promulgated under the Investor ceases Exchange Act) acquires, announces an intention to have the right acquire or proposes to designate a director to acquire in an transaction described in clauses (a) through (j) below not approved by the Board pursuant to Section 5of Directors of the Company; Purchaser will not, and will cause its associates (iii) as such term is defined under the date on which the Investor (including SK ecoplant and SPVExchange Act) and its Subsidiaries beneficially own less than five percent affiliates whom it controls (5.0%as such term is defined under the Exchange Act) of the shares of Common Stock then issued and outstandingnot to, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the followingunless expressly requested in writing, except as approvedin advance, invited or waived by the Company or pursuant to a written agreement with the BoardCompany, directly or as contemplated by this Agreementindirectly, in any manner whatsoever:
(a) [Intentionally Left Blank];
(b) make, propose to make, or participate in any merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company;
(c) solicit, make, effect, initiate, cause or, in any way participate in (other than Permitted Purchases and purchases of Preemptive Right Sharesby granting a proxy to management representatives), directly or indirectly, acquire beneficial ownership any “solicitation” of Common Stock and/or Common Stock Equivalents and/or “proxies” (as such terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or consents from any instrument that gives the Investor the economic equivalent holders of ownership of an amount of any securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsCompany;
(bd) make a tender, exchange call or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter subsidiary thereof or seek or act, alone or in concert with others, to be voted upon by the stockholders of advise or influence in any manner whatsoever, any person or entity with respect to the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly form, join or indirectlyparticipate in, solicit proxies or consents or propose or seek or become a participant in a solicitation otherwise encourage the formation of, any “group” (as such terms are defined in Regulation 14A under within the meaning of Section 13(d)(3) of the Exchange Act), or seek to advise or influence any Person, ) with respect to voting the record or beneficial ownership of any securities of the Company;
(f) deposit arrange, facilitate, or in any securities way participate, directly or indirectly, in any financing for the purchase by any person in a transaction not approved by the Board of Directors of the Company in a voting trust or subject of any securities or assets of the Company to or any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement)its subsidiaries;
(g) propose (i1) act, directly, or indirectly, to seek to control, advise, direct or influence the management, Board of Directors (including any mergerindividual members thereof), consolidationstockholders, business combination, tender policies or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities affairs of the Company or any Derivativesubsidiary thereof; provided, or any similar transaction involving however, that nothing contained herein shall prevent Purchaser from freely communicating privately with management and the Company or (ii) any recapitalizationdirectors Purchaser’s observations, restructuring, liquidation or other extraordinary transaction recommendations and preferences with respect to the Company, in each case its operations and policies; or (2) disclose an intent, purpose, plan or proposal with respect to the Company or any subsidiary thereof inconsistent with the provisions of this letter agreement, including, without limitation, any intent, purpose or plan that requires the prior written consent Company to waive the benefit of the Board (a transaction described in clauses (i) and (ii) that would result in a Change or amend any provision of Control, is referred to as a “Business Combination”)this letter agreement;
(h) act in concert with any Third Party to take any action which might require the Company to make a public announcement regarding any matter of the types set forth in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Companythis Section 6.1;
(i) request agree or offer to take, or encourage (other than by granting a proxy to management representatives) or propose (publicly or privately) the taking of, or announce an intention to the Board or the Company take, any action referred to in clauses (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativesa) through (g), directly or indirectlyinclusive, any amendment or waiver of any provision of this Section 2.1 (including this clause (i))6.1;
(j) make any public announcement regardingassist, induce or encourage (other than by granting a proxy to management representatives), or enter into discussions, negotiations, arrangements or understandings with, any person to take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth type referred to in clauses (a) through (i) above; or
(k) enter into discussions), negotiationsinclusive, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in of this Section 2.1 6.1. The expiration of the Standstill Period shall prevent, restrict, encumber, not terminate or limit in any manner: (A) the Investor or otherwise affect any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member other provisions of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofletter agreement.
Appears in 1 contract
Sources: Purchase Agreement (Corning Natural Gas Holding Corp)
Standstill. During (a) Except as otherwise set forth in or permitted by this Agreement, from the period date of this Agreement until the expiration of the Standstill Period (such periodas defined below), each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of the foregoing, agents and other representatives (collectively, the “Standstill TermRelated Persons” and each a “Related Person”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesto, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives without the Investor the economic equivalent of ownership of an amount of securities prior written approval of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Board:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek engage in any solicitation of proxies or written consents to have called vote (or withhold the vote of) any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders voting securities of the Company, or (ii) propose conduct any binding or nominate for election nonbinding referendum with respect to the Board any person whose nomination has not been approved by a majority voting securities of the Board (excluding the Investor DesigneeCompany, if any);
(d) or assist or participate in any other way, directly or indirectly, encourage, accept in any solicitation of proxies (or support a tender, exchange or other offer or proposal by written consents) with respect to any other Person or group (an “Offeror”) for voting securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a participant “participant” in a solicitation (“solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Exchange Act), to vote (or seek to advise or influence any Person, with respect to voting of withhold the vote of) any securities of the Company;Company;
(fii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any voting securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any course of conduct with the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders or by written consent;
(iv) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Restated Certificate of Incorporation of the Company, as amended (the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation submit a proposal or offer for, or make any communication in opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of the Company such that after giving effect to any arrangement such Acquisition, the Investor Group or agreement any of its Related Persons holds, directly or indirectly, in excess of a 13.1% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to a Voting Exempt Matter (as defined in Section 5);
(viii) engage in any short sale, forward contract or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(ix) seek to advise, encourage, support or influence any person with respect to the voting of such securities(or execution of a written consent in respect of), including the granting acquisition of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase disposition of any securities of the Company or any Derivative, or any similar transaction involving its subsidiaries;
(x) other than in open market sale transactions whereby the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent identity of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Controlpurchaser is not known, is referred sell, offer or agree to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, orsell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers;
(xi) take any action in support of or make any proposal or request that constitutes (or would constitute if taken), or make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, (B) any change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with stockholders of the Company or others;
(xiii) form, join or in any other way participate in a “any partnership, limited partnership, syndicate, syndicate or other “group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act or otherwise) with respect to the Company or any its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company;
’s list of stockholders or its other books and records or make any request under Section 220 of the General Corporation Law of the State of Delaware or other applicable legal provisions regarding inspection of books and records or other materials (iincluding stocklist materials) request or propose to the Board or of the Company (or any of its officerssubsidiaries;
(xv) commence, directorsencourage, Affiliates employeesjoin as a party, attorneyssolicit or support any litigation, accountantsarbitration, financial advisors and derivative action in the name of the Company or any class action or other professional representatives)proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, any amendment to amend, modify or waiver of any provision waive the terms of this Section 2.1 (including this clause (i));
(j) make any 4 other than through non-public announcement regardingcommunications with the Company, or take any action that could require which the Company may accept or reject in its sole and absolute discretion, that would not trigger public disclosure obligations for any member of the Investor Group or its Related Persons or reasonably be expected to make a trigger public announcement regarding, a potential Business Combination disclosure obligations for the Company or any of the matters set forth in clauses (a) through (i) aboveCompany Related Persons; or
(kxvii) enter into any discussions, negotiations, arrangements agreements or agreements understandings with any Person relating person or entity with respect to any action the foregoing actions referred Investor Group is prohibited from taking pursuant to in (a) through (i) above; providedthis Section 4, howeveror advise, that assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing contained in this Section 2.1 4 or elsewhere in this Agreement shall prevent, restrict, encumber, prohibit or limit in any manner: (A) restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company regarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, through any director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Related Person.
(b) For purposes of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.:
Appears in 1 contract
Standstill. During the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) The Holder, on behalf of himself and his Affiliates, as a group, and the Members, as a group, irrevocably agree that they will not acquire through purchase in a private transaction or in the public market, by transfer or assignment, by gift or in any other than Permitted Purchases and purchases of Preemptive Right Sharesmanner, directly or indirectlyindirectly (with or without consideration), acquire beneficial ownership shares of Purchaser Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of (each an amount of securities of the Company (a “DerivativeAcquisition”), exceptto the extent that after giving effect to an Acquisition, nothing the Holder or the Members (together with each of their respective Affiliates, and any other Persons acting as a group together with the Holder or the Members or any of their respective Affiliates (such Persons, “Attribution Parties”)), would beneficially own in this Section 2.1(a) shall prevent or prohibit excess of the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;Beneficial Ownership Limitation (as defined below).
(b) make a tenderFor purposes of the foregoing sentence, exchange the number of shares of Purchaser Common Stock beneficially owned by the Holder or other public offer the Members, their respective Affiliates and Attribution Parties shall include the number of shares of Purchaser Common Stock:
(i) issuable upon exercise or conversion of securities convertible into, or exchangeable for, or representing the rights to receive, Purchaser Common Stock;
(ii) owned directly or indirectly or attributable to, or rights to acquire by, any spouse, ex-spouse, child, step-child, parent or sibling of any such Person; and
(iii) owned by any Person that has an agreement, understanding or arrangement, oral or written, (other than those certain Voting Agreements entered into in connection with the Purchase Agreement) to vote their Purchaser Common Stock, including Purchaser Common Stock and/or Common Stock Equivalents;owned or controlled by others, as directed by any such Person.
(c) directly or indirectly, (iBeneficial ownership shall be calculated in accordance with Section 13(d) seek to have called any meeting of the stockholders Exchange Act and the rules and regulations promulgated thereunder. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Company or propose any matter to be voted upon by Exchange Act and the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);rules and regulations promulgated thereunder.
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an The “Offeror”) for securities Beneficial Ownership Limitation” shall be 49% of the Company (if such offer or proposal wouldnumber of shares of Purchaser Common Stock issued and outstanding at the time of any contemplated Acquisition. In determining the number of issued and outstanding shares of Purchaser Common Stock, if consummated, result in a Change of Control the Holder and the Members must obtain from the Purchaser the most recent calculation of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting issued and outstanding shares of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofPurchaser Common Stock.
Appears in 1 contract
Sources: Standstill Agreement (BurgerFi International, Inc.)
Standstill. During (a) The Holders, on behalf of themselves and their investment advisor, agree with the Issuer and Holdings that, for a period of one year after the date of this Agreement (such period, the “Standstill TermPeriod”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date), (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5unless specifically permitted in writing by Holdings, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither they nor their Affiliates will in any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesmanner, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company effect, seek, offer or propose any matter (whether publicly or otherwise) to be voted upon by the stockholders of the Companyeffect, or cause or participate in, or in any way assist any other person or entity to effect, seek, offer or propose (iiwhether publicly or otherwise) propose to effect or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);participate in:
(dA) directly any acquisition, agreement to acquire, proposal or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act)acquire, or seek to advise facilitate the acquisition or influence any Person, with respect to voting ownership of any securities (or beneficial ownership thereof) or all or substantially all of the Company;assets, or any warrant, option or other right to acquire any such securities or assets, of Holdings or any of its Subsidiaries other than the New Securities offered hereby,
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (iB) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets merger or businesses, purchase of any securities of the Company other business combination involving Holdings or any Derivative, or any similar transaction involving the Company or of its Subsidiaries,
(iiC) any business combination, recapitalization, restructuring, liquidation liquidation, dissolution or other extraordinary transaction with respect to Holdings or any of its Subsidiaries, or
(D) any “solicitation” of “proxies” (as such terms are used in the Company, in each case without the prior written consent proxy rules of the Board (a transaction described in clauses (iSecurities and Exchange Commission) and or consents to vote any voting securities of Holdings;
(ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any voting securities of Holdings, other than between the CompanyHolders and any Affiliates of the Holders;
(iiii) call, request the calling of, or propose otherwise seek or assist in the calling of a special meeting of the shareholders of the other party;
(iv) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving Holdings or its securities or assets;
(v) otherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of Holdings, except pursuant to the Board terms of the Transaction Documents;
(vi) take any action which might force Holdings to make a public announcement regarding any of the types of matters set forth in (a) above;
(vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the Company foregoing; or
(viii) enter into any agreements with any third party with respect to any of the foregoing. The Holders, on behalf of themselves and their investment advisor, further agree that during the Standstill Period they will not (and will ensure that their Affiliates and associates (and any person acting on behalf of or in concert with them or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representativestheir affiliates or associates) will not), directly or indirectly, any amendment or waiver without the prior written consent of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingHoldings, or take any action that could would reasonably be expected to require the Company Holdings to make a public announcement regardingregarding the possibility of a business combination, a potential Business Combination merger or other type of transaction described in this Section 6.04 with the Holder or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) aboveits affiliates; provided, however, that nothing contained the forgoing restrictions in this Section 2.1 6.04 shall prevent, restrict, encumbernot apply to (a) the offer and sale of any or all of the New Securities or the Underlying Shares to any Person at any time, or limit in any manner: (Ab) the Investor purchase or any other acquisition of any Common Stock by any Holder from any Person at any time so long as such purchase or acquisition does not violate 6.04(b).
(b) Each Holder, on behalf of itself and its Affiliates from making confidentialinvestment advisor, nonpublic proposals further agrees that for so long as any New Exchangeable Notes are outstanding it will not enter into any transaction or agreement with the intent to become, directly or indirectly, the beneficial owner, as determined pursuant to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (Brules and regulations promulgated under Section 13(d) the Investor Designee from performing its duties as a member of the Board; Exchange Act, either alone or (C) together with each Aggregated Person, of Common Stock representing more than 9.99% of the Investor or any total issued and outstanding shares of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofCommon Stock.
Appears in 1 contract
Sources: Exchange Agreement (Pernix Therapeutics Holdings, Inc.)
Standstill. During (a) From and after the period (such period, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) during the date on which the Ownership Period, Investor ceases to have the right to designate a director to the Board pursuant to Section 5and its Covered Affiliates will not, and (iii) Investor will cause such Covered Affiliates not to, without the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) prior written consent of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, singly or in concert with any other Person:
(i) except (i) pursuant to the exercise of preemptive rights in accordance with Section 7.5 and (ii) pursuant to open market purchases following which Investor Beneficially Owns up to (but no more than) 19.99% of Company’s outstanding Common Stock, acquire, offer or seek to acquire, agree to acquire beneficial ownership or make a proposal to acquire, by purchase or otherwise, Beneficial Ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange any options or other public offer direct or indirect rights to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders securities of the Company, or any Derivative Instruments;
(ii) propose make, engage in, or nominate for election to the Board in any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designeeway participate in, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group “solicitation” of proxies (an “Offeror”) for securities as such terms are used in the proxy rules of the Company Commission but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or advise, encourage or persuade, or seek to advise, encourage or persuade, any Person with respect to the voting of (if such offer or proposal would, if consummated, result execution of a proxy or written consent in a Change of Control respect of) any securities of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant “participant” in a solicitation any contested “solicitation” (as such terms are defined in Regulation 14A or used under the Exchange Act), or seek to advise or influence any Person, ) with respect to voting the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting;
(iii) request or demand a copy of the Company’s list of stockholders or its other books and records, whether under Section 220 of the Delaware General Corporation Law or equivalent state or federal Laws;
(iv) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks or offers to acquire Beneficial Ownership of any securities of the Company in order to affect control of the Company or has the purpose or effect of circumventing any provision of this Agreement;
(v) call, seek to call, or request the call of (publicly or otherwise), alone or in concert with others, any meeting of the Company’s stockholders, whether or not such a meeting is permitted by the Governing Documents of the Company, including a “town hall meeting”;
(vi) disclose publicly or privately, in a manner that would reasonably be expected to become public, any intent, purpose, plan, or proposal with respect to the Company, the Board, the Company’s management, business or corporate structure, policies, affairs, or any of its securities or assets, including as related to the Project;
(vii) act, seek, facilitate, persuade, or encourage, alone or in concert with others, any Person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors of the Company or otherwise with respect to the Company or seek, facilitate or encourage the appointment, election or removal of any directors of the Company;
(fviii) submit, participate in, or be the proponent of, or seek, or persuade or encourage any Person, to submit, any stockholder proposal to the Company (including any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act);
(ix) deposit any securities of the Company in a any voting trust or similar arrangement or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesthereof (including by granting any proxy, including the granting of any proxy (consent, or other authority to vote), other than pursuant any such trust, arrangement or agreement among the Company and its Affiliates;
(x) otherwise act, along or in concert with others, to control or influence the Board, management or policies of the Company (it being understood that this Agreementclause (x) shall not prohibit any private discussions with the Board or management of the Company that are not otherwise expressly prohibited by this Section 7.2);
(gxi) propose (i) cause any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party Person to take any action in clauses (a) through (g) above, or, directly that Investor or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect Investor’s Covered Affiliates and their respective Representatives is prohibited from taking pursuant to the Company or any securities of the Companythis Section 7.2;
(ixii) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)request, directly or indirectly, any amendment amendment, modification or waiver of this Section 7.2 (including this clause (xii)); or
(xiii) contest the validity of this Section 7.2 or make, initiate, take or participate in any demand, Proceeding (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; 7.2. provided, however, that (a) nothing in this Section 7.2 will limit the Investor’s ability to vote (subject to Section 7.3) or Transfer (subject to Section 7.1) its Common Stock or designate any Investor Designee pursuant to Section 7.4, or the ability of any Investor Designee to deliberate, vote or otherwise exercise his or her duties in his or her capacity as a member of the Board and (b) if this Section 7.2 ceases to apply as a result of the expiration of the Ownership Period and within six (6) months of the date of such expiration the Investor acquires Beneficial Ownership of an aggregate amount of Common Stock representing at least ten percent (10%) of the aggregate outstanding Common Stock as of such time, then the restrictions contained in this Section 2.1 shall prevent7.2 will again be applicable as if the Ownership Period had never expired. Notwithstanding anything in this Section 7.2 to the contrary, restrictthe restrictions set forth in this Section 7.2 will automatically terminate on the earliest to occur of (x), encumber, the Board’s adoption of a written resolution approving a Change of Control transaction or limit in any manner: (Ay) the public announcement by a Third Party (who is not the Investor or any of its Affiliates from making confidential, nonpublic proposals to Covered Affiliates) of any tender or exchange offer the Board for a transaction involving a Business Combination following consummation of which would result in such Third Party’s acquisition of Beneficial Ownership of more than fifty percent (50%) of the public announcement by outstanding Voting Stock or equity securities of the Company after or the Second Closing Date that it has entered into voting power to elect a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member majority of the Board; , and in connection therewith, the Company does not, within ten (10) Business Days after the date of the commencement of such solicitation, file with the Commission a Schedule 14D-9 with respect to such offer that recommends that the Company’s stockholders reject such offer (as long as Investor has not violated this Section 7.2 and such violation has not caused such public announcement).
(b) Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the activities of any Investor Excluded Party that is not a Covered Affiliate. The Company acknowledges that employees of Purchaser and its Covered Affiliates may serve on the governing boards, advisory committees or similar committees of Investor Excluded Parties, and information shall not be deemed to have been received by any such Investor Excluded Party solely due to such employee’s dual role (C) so long as such employee does not disclose such information to the Investor Excluded Party or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofRepresentatives).
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Minerals International Inc)
Standstill. During Each Investor agrees that, for the period (such period, commencing on the “Standstill Term”) commencing as date of this Agreement and ending on the First Closing Date and continuing until the later earliest of (i) the second (2nd) one year anniversary of the Second Closing DateAgreement, (ii) a material breach by the date on Company of its obligations under this Agreement which the Investor ceases to have the right to designate a director to the Board pursuant to Section is not cured within five (5) Business Days after written notice from any Investor, and (iii) the date on which of any Contrary Event or (iv) the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) termination of the shares of Common Stock then issued and outstandingboard observation covenants set forth in Section 2 (the “Standstill Period”), the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do neither it nor any of the followingits controlled Affiliates will, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases it will cause each of Preemptive Right Sharesits controlled Affiliates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek submit any stockholder proposal (pursuant to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Rule 14a-8 promulgated by the stockholders SEC under the Exchange Act or otherwise) or any notice of the Companynomination or other business for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved (including by a majority way of the Board (excluding the Investor DesigneeRule 14a-11 of Regulation 14A), if any)other than as expressly permitted by this Agreement;
(dii) engage in, directly or indirectly, encourage, accept any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or support a tender, exchange written consents) or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or to inspect any books and records of the Company;
(fiv) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) seek to place a Representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vi) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the Company;
(ivii) request other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or negotiate with or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(viii) acquire, announce an intention to acquire, offer or propose to the Board acquire, or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any amendment interests in the Company’s indebtedness or waiver (B) an aggregate amount of any provision more than 9.99% of this Section 2.1 the Company’s outstanding Common Stock (including this clause (i));
(j) make any public announcement regardingwhich shall not include Common Stock issued in connection with a stock split, stock dividend or take any similar corporate action that could require initiated by the Company with respect to make a public announcement regarding, a potential Business Combination or any securities beneficially owned by any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Investors or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovetheir Affiliates); provided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(ix) short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any liens against the Company’s capital stock, except that nothing contained an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(x) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 2.1 shall prevent5; or
(xii) enter into any agreement, restrictarrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, encumber, or limit in any manner: (A) the Investor Group shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of its Affiliates from making confidentialthe Company, nonpublic proposals any stockholder proposal or other matter to the Board for a transaction involving a Business Combination following the public announcement be voted on by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member stockholders of the Board; or (C) Company and the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofreasons therefor.
Appears in 1 contract
Standstill. During the period (such periodThe CATL Parties agree that they will not, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5directly or indirectly, and (iii) the date will cause their respective Affiliates not to, and their Representatives acting on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall their behalf not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementto:
(a) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any Units or any direct or indirect rights to acquire any Units, any securities convertible into or exchangeable for any Units, or any options or other than Permitted Purchases and purchases derivative securities or contracts or instruments in any way related to the price of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsUnits;
(b) acquire, offer or seek to acquire, agree to acquire or make a tenderproposal to acquire, exchange by purchase or otherwise, any Common Stock or Preferred Stock, any other securities of PublicCo or any of its Affiliates, or any direct or indirect rights to acquire any Common Stock, Preferred Stock or any other securities of PublicCo or any of its Affiliates, any securities convertible into or exchangeable for any such Common Stock, Preferred Stock or any other securities of PublicCo or any of its Affiliates, or any options or other public offer derivative securities or contracts or instruments in any way related to acquire the price of Common Stock, Preferred Stock and/or Common or any other securities of PublicCo or any of its Affiliates if, following any such acquisition or purchase, the CATL Parties’ and their Affiliates’ aggregate PublicCo Economic Ownership Percentage or PublicCo Voting Percentage would exceed 9.8%; provided that, in the event an Earnout Stock EquivalentsPayment is made in accordance with the Merger Agreement, the receipt by the CATL Parties of Earnout Stock pursuant to such Earnout Stock Payment, in and of itself, shall not be a violation of this Section 3.01(b) so long as the CATL Parties comply, and cause their Affiliates to comply, with the obligations set forth in Section 3.03 and Section 3.04 of this Agreement, if applicable;
(c) directly make or indirectly, in any way encourage or participate in any “solicitation” of “proxies” (i) seek to have called any meeting of the stockholders of the Company whether or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election not relating to the Board any person whose nomination has not been approved by a majority election or removal of the Board (excluding the Investor Designeedirectors), if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined used in Regulation 14A under the rules of the U.S. Securities and Exchange ActCommission (the “SEC”), to vote, or knowingly seek to advise or influence any Person, with respect to voting of of, any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securitiesPrivateCo, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (PublicCo or any of its officerstheir respective subsidiaries, directorsas applicable, Affiliates employeesor initiate any proposal for action by PrivateCo’s or PublicCo’s Members or stockholders, attorneysas applicable, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment seek election to or waiver to place a representative among the managers of PrivateCo or on the board of directors of PublicCo or seek the removal of any provision manager or director of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, PrivateCo or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) abovePublicCo; or
(kd) enter into any discussions, negotiations, arrangements or agreements understandings with any Person relating third party (including security holders of PrivateCo or PublicCo, but excluding, for the avoidance of doubt, any CATL Parties) with respect to any of the foregoing actions referred to in (a) through (i) above; providedforegoing, howeverincluding forming, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, joining or limit in any manner: way participating in a “group” (Aas defined in Section 13(d)(3) of the Investor Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with any third party with respect to any securities of PrivateCo or PublicCo or otherwise in connection with any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereofforegoing.
Appears in 1 contract
Sources: Investment Agreement (Power & Digital Infrastructure Acquisition II Corp.)
Standstill. During the period Cooperation Period, each ▇▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled Affiliates and its and their respective Representatives acting on their behalf (such periodcollectively with the ▇▇▇▇▇▇▇ Parties, the “Standstill TermRestricted Persons”) commencing as of to not, directly or indirectly, without the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Dateprior written consent, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited invitation or waived authorization by the Company or the Board, or as contemplated by this Agreement:
(ai) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of, any Voting Securities, or engage in any swap or hedging transactions or other than Permitted Purchases and purchases derivative agreements of Preemptive Right Sharesany nature with respect to any Voting Securities, directly in each case, if such acquisition, offer, agreement or indirectly, acquire transaction would result in the ▇▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities more than 9.9% of the Company Ordinary Shares outstanding at such time;
(a “Derivative”ii) (A) call or seek to call (publicly or otherwise), exceptalone or in concert with others, an extraordinary general meeting of the Company’s shareholders or action by written consent (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any shareholder proposal to the Company, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company; provided that nothing in this Section 2.1(a) shall Agreement will prevent the ▇▇▇▇▇▇▇ Parties or prohibit the Investor their Affiliates from investing taking actions in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisionsfurtherance of identifying any Replacement New Director;
(biii) make a tender, exchange any request for stock list materials or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders books and records of the Company or propose any of its subsidiaries under any statutory or regulatory provisions providing for shareholder access to books and records;
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act excluding, for the avoidance of doubt, carve-outs relating to solicitations of ten or fewer shareholders) of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal relating to be voted upon the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(v) make any offer or proposal with respect to any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably require public disclosure by the stockholders Company or any of the ▇▇▇▇▇▇▇ Parties (it being understood that (x) the Separation shall not be considered an Extraordinary Transaction and (y) the foregoing shall not restrict the Restricted Persons from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other shareholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(dvi) directly make any public proposal with respect to any change in the capitalization, stock repurchase programs, dividend policy, Board, management or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities corporate structure of the Company or any of its subsidiaries, except for such statements that are consistent with the Press Release (if such offer as defined below) or proposal would, if consummated, result in a Change the provisions of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”)this Agreement;
(evii) directly knowingly encourage or indirectlyadvise any Third Party or knowingly assist any Third Party in encouraging or advising any other person (A) with respect to the giving or withholding of any proxy or consent relating to, solicit proxies or consents other authority to vote, any Voting Securities, or propose (B) in conducting any type of referendum relating to the Company (other than such encouragement or seek advice that is consistent with the Board’s recommendation in connection with such matter, or become a participant as otherwise specifically permitted under this Agreement);
(viii) form, join or act in a solicitation (concert with any “group” as such terms are defined in Regulation 14A under Section 13(d)(3) of the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities Voting Securities, other than solely with Affiliates of the Company;▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(fix) deposit any securities of the Company in enter into a voting trust or subject any securities of the Company to any trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting like), in each case other than (A) this Agreement, (B) solely with Affiliates of such securitiesthe ▇▇▇▇▇▇▇ Parties or (C) granting proxies in solicitations approved by the Board;
(x) engage in any short sale or any purchase, including the granting sale or grant of any proxy option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than pursuant any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to this Agreement);
(g) propose (i) or derives any merger, consolidation, business combination, tender significant part of its value from a decline in the market price or exchange offer, purchase value of the Company’s assets or businesses, purchase of any securities of the Company and would, in the aggregate or individually, result in the ▇▇▇▇▇▇▇ Parties ceasing to have a “net long position” in the Company;
(xi) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Company Ordinary Shares held by a Restricted Person to any Derivativethird party;
(xii) institute, solicit or join, as a party, any similar transaction litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (iiincluding derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce any recapitalizationprovision of this Agreement instituted in accordance with and subject to Section 10, restructuring, liquidation or other extraordinary transaction (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the CompanyCompany or its Affiliates against a Restricted Person, in each case without (C) bringing bona fide commercial disputes that do not relate to the prior written consent subject matter of this Agreement (including the Board Press Release), (a transaction described in clauses D) exercising statutory appraisal rights or (iE) and (ii) that would result in a Change of Control, is referred responding to as a “Business Combination”);or complying with validly issued legal process;
(hxiii) act in concert enter into any negotiations, agreements or understandings with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xiv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this clause), in clauses each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal by the Company or any of the Restricted Persons; provided, that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of (ai) through as a nonexclusive remedy for any material breach of this Agreement by the Company (gincluding, without limitation, a failure to appoint the New Director to the Board or the Finance Committee in accordance with Section 1 or a failure to issue the Press Release in accordance with Section 3) aboveupon five (5) business days’ written notice by any of the ▇▇▇▇▇▇▇ Parties to the Company if such breach has not been cured within such notice period, orprovided that the ▇▇▇▇▇▇▇ Parties are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period, (ii) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company during the Cooperation Period or (y) one or more definitive agreements providing for a transaction or series of transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 5% of the outstanding Company Ordinary Shares immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) on an as-converted basis during the Cooperation Period; (iii) the commencement of any tender or exchange offer (by any person other than the ▇▇▇▇▇▇▇ Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or any amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (provided that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer); (iv) such time as the Company determines it is no longer pursuing the Separation, or the Company, its Affiliates or its or their Representatives acting on behalf of the Company, makes any public statement that the Company does not intend to complete the Separation; and (v) the adoption by the Board of any amendment to the Company’s articles of association (the “Articles of Association”), as in effect on the date hereof, that would reasonably be expected to impair the ability of a shareholder to submit nominations of individuals for election to the Board or shareholder proposals in connection with any shareholder meeting to be held after the 2020 Annual Meeting. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 2(c)) will prohibit or restrict any of the Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction (other than the Separation) that is publicly announced by the Company or a Third Party, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (C) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, or (D) negotiating, evaluating and/or trading, directly or indirectly, form, join or in any way participate in a “partnershipindex fund, limited partnershipexchange traded fund, syndicatebenchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, or other group” as such terms are used in the rules of the SEC with respect to the Company or any but not primarily consist of, securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During Each Investor agrees that, for the period commencing immediately following the payment of the Expense Reimbursement Amount pursuant to Section 3 (such period, the “Standstill TermReleases Effectiveness Time”) commencing as of and ending on the First Closing Date and continuing until the later earliest of (i) the second (2nd) one year anniversary of the Second Closing DateAgreement, or (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived material breach by the Company or of its obligations under this Agreement which is not cured within five (5) Business Days after written notice from any Investor (the Board“Standstill Period”), or as contemplated by this Agreement:
(a) other than Permitted Purchases neither it nor any of its controlled Affiliates will, and purchases it will cause each of Preemptive Right Sharesits controlled Affiliates not to, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing acting alone or in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund concert with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;others:
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek submit any stockholder proposal (pursuant to have called any meeting of the stockholders of the Company or propose any matter to be voted upon Rule 14a-8 promulgated by the stockholders SEC under the Exchange Act or otherwise) or any notice of the Companynomination or other business for consideration, or (ii) propose or nominate any candidate for election to the Board any person whose nomination has not been approved (including by a majority way of the Board (excluding the Investor DesigneeRule 14a-11 of Regulation 14A), if any)other than as expressly permitted by this Agreement;
(dii) engage in, directly or indirectly, encourage, accept any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or support a tender, exchange written consents) or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or otherwise become a “participant in a solicitation solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act)) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person, other person with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or to inspect any books and records of the Company;
(fiv) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join in or in any other way participate in a “partnership, limited partnership, syndicate, syndicate or other group” as such terms are used in within the rules meaning of Section 13(d)(3) of the SEC Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) seek to place a Representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the Company;
(iviii) request other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or negotiate with or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to acquire, offer or propose to the Board acquire, or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives)agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any amendment interests in the Company’s indebtedness or waiver (B) an aggregate amount of any provision more than 9.99% of this Section 2.1 the Company’s outstanding Common Stock (including this clause (i));
(j) make any public announcement regardingwhich shall not include Common Stock issued in connection with a stock split, stock dividend or take any similar corporate action that could require initiated by the Company with respect to make a public announcement regarding, a potential Business Combination or any securities beneficially owned by any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements Investors or agreements with any Person relating to the foregoing actions referred to in (a) through (i) abovetheir Affiliates); provided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(x) short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any liens against the Company’s capital stock, except that nothing contained an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xii) take any action challenging the validity or enforceability of any provisions of this Section 2.1 shall prevent4; or
(xiii) enter into any agreement, restrict, encumber, arrangement or limit in any manner: (A) the Investor or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, each of the Investors shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its Affiliates from making confidentialsole discretion, nonpublic proposals and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Board for a transaction involving a Business Combination following the public announcement Company, any stockholder proposal or other matter to be voted on by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member stockholders of the Board; or (C) Company and the Investor or any reasons therefor. This Section 4 shall not restrict the ability of its the Investors and each of their Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance and other Representatives to privately communicate with the terms hereof Company and thereofits Representatives so long as such private communications would not be reasonably expected to trigger public disclosure obligations for any party.
Appears in 1 contract
Standstill. During The Investor agrees that from the period date hereof and until one year following the date hereof (such period, the “Standstill TermPeriod”) commencing as ), it will not, and will also ensure that no member of the First Closing Date and continuing until Investor Group nor any Person acting on behalf of or in concert with the later of (i) the second (2nd) anniversary Investor nor any member of the Second Closing DateInvestor Group, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Shares, will directly or indirectly, acquire beneficial without the prior written consent of the Company: (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of Common Stock and/or Common Stock Equivalents and/or of, any instrument that gives the Investor the economic equivalent of ownership of an amount of securities of the Company or any of its Subsidiaries, or any warrant, option or other direct or indirect right to acquire any such securities that (a “Derivative”)taken together with all Shares, except, nothing in this Section 2.1(a) shall prevent or prohibit Warrant Shares and other voting securities held by the Investor from investing in a fund with respect Group) exceeds 25% of the then outstanding shares of Common Stock; (ii) enter, agree to which the Investor does not have enter, propose, seek or share decision-making authority over investment offer to enter into or divestment decisions;
(b) make a tenderfacilitate any merger, exchange business combination, recapitalization, restructuring or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of extraordinary transaction involving the Company or propose any matter to be voted upon by the stockholders of the Company, or its Subsidiaries; (iiiii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectlyinitiate, encourage, accept make, or support a tenderin any way participate or engage in, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities solicitation” of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (proxies” as such terms are defined used in Regulation 14A under the Exchange Act)proxy rules of the Commission to vote, or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement Person with respect to the voting of, any voting securities of such securities, including the granting Company; (iv) file with the Commission a proxy statement or any supplement thereof or any other soliciting material in respect of any proxy (other than the Company or its stockholders that would be required to be filed with the Commission pursuant to this Rule 14a-12 or other provisions of the Exchange Act; (v) except as set forth in Sections 6.3 or 6.4 of the Prior Agreement);
(g) propose (i) , nominate or recommend for nomination a Person for election at any merger, consolidation, business combination, tender or exchange offer, purchase stockholder meeting at which directors of the Company’s assets or businesses, purchase board of directors are to be elected; (vi) submit any securities of the Company or any Derivativestockholder proposal for consideration at, or bring any similar transaction involving the other business before, any Company or stockholder meeting; (iivii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in (within the rules meaning of Section 13(d)(3) of the SEC Exchange Act) with respect to the Company or any voting securities of the Company;
; (iix) call, request the calling of, or propose otherwise seek or assist in the calling of a special meeting of the stockholders of the Company; (x) otherwise act, alone or in concert with others, to seek to control or influence the Board management or the Company policies of the Company; (xi) disclose any intention, plan or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regardingarrangement prohibited by, or take any action that could require inconsistent with, the Company to make a public announcement regardingforegoing; or (xii) advise, a potential Business Combination assist or any of the matters set forth in clauses (a) through (i) above; or
(k) encourage or enter into any discussions, negotiations, agreements or arrangements or agreements with any Person relating to the foregoing actions referred to other Persons in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance connection with the terms hereof and thereofforegoing.
Appears in 1 contract
Standstill. During Except as otherwise provided in this Agreement or the period (such periodCertificate of Designations, the “Standstill Term”) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to Series A Director no longer serves on the Board of Directors, without the prior written consent or invitation of the Board of Directors, the Purchaser will not at any time, nor will it cause any of its Affiliates to: (a) effect or seek, offer or publicly propose to effect, 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, (i) any acquisition of any equity securities (or beneficial ownership thereof) or rights or options to acquire any equity securities (or beneficial ownership thereof), or any securities convertible into or exchangeable for any such equity securities (or beneficial ownership thereof) of the Company, other than by Purchaser and its Affiliates in a transaction pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) Purchaser and its Subsidiaries Affiliates would beneficially own less no more than five percent (5.05%) in the aggregate of the outstanding shares of the Company’s Common Stock then issued and outstanding(excluding any Purchased Common Shares acquired by the Purchaser or such Affiliate pursuant to this Agreement) after such transaction or any exercise of the Purchaser’s rights to acquire New Securities pursuant to Article VI or (ii) any tender or exchange offer, merger or other business combination involving the Investor (including SK ecoplant and Company or its Subsidiaries or purchase of assets of the SPV) Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries shall not do Subsidiaries; (b) 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 other matter or proposal; (c) become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents; (d) seek to advise, encourage or influence any Person with respect to the voting or disposition of any of the followingsecurities of the Company; or (e) initiate, except as approved, invited encourage or waived by the Company or the Board, or as contemplated by this Agreement:
(a) other than Permitted Purchases and purchases of Preemptive Right Sharesparticipate, directly or indirectly, acquire beneficial ownership in any “vote no,” “withhold” or similar campaign; (f) otherwise act to seek representation on or to control or influence the management or policies of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor Company or to obtain representation on the economic equivalent Board of ownership of an amount of securities Directors of the Company (beyond their right to do so based on their representation on the Board of Directors pursuant to Section 4.1); (g) publicly submit any shareholder proposal to the Company, (h) publicly propose any change of control or other material transaction involving the Company; or (i) join or participate in a “Derivative”)group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party (excluding, exceptfor the avoidance of doubt, nothing in this Section 2.1(athe Purchaser Parties) shall prevent or prohibit the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, it being understood that nothing contained in this Section 2.1 4.4 shall prevent(v) restrict or prohibit a Series A Director or Purchaser Nominee, restrictas applicable, encumberfrom taking any action, or limit refraining from taking any action, which he or she determines, in any manner: (A) the Investor his or any her reasonable discretion, is necessary or appropriate in light of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its his or her fiduciary duties as a member of the Board; Board of Directors, (w) restrict or prohibit the making or submission to the Company and/or the Board of Directors any proposal by the Purchaser Parties that would not reasonably be expected to result in the Company being obligated to publicly disclose such proposal, (Cx) restrict or prohibit participation in rights offerings made by the Investor Company to all holders of Common Stock, (y) restrict or prohibit the Purchaser’s acquisition, disposition, sale or Transfer of the Purchased Shares (including the accretion of dividends thereon and any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreementdividends payable in any other security), in each case, in accordance with the terms hereof and thereofof this Agreement and, with respect to the Series A Preferred Stock, the Certificate of Designations or (z) limit or restrict any Transfer pursuant to a Permitted Loan or any foreclosure thereunder or Transfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (Array Technologies, Inc.)
Standstill. During (a) Purchaser will not, and will not permit any of its Affiliates to, acquire or agree to acquire, directly or indirectly, by purchase or otherwise (including by joining a "group" within the period (such period, the “Standstill Term”meaning of Section 13(d)(3) commencing as of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary Exchange Act), any of the Second Closing DateVoting Stock of the Company, (ii) any securities directly or indirectly convertible into or exchangeable for Voting Stock of the date on which Company, any direct or indirect rights, warrants or options to acquire any voting Stock of the Investor ceases Company or any right to vote Voting Stock of the Company if, after giving effect to such purchase or other acquisition, Purchaser and its Affiliates together would hold in the aggregate, or have the right to designate vote, more than 15% of the Voting Stock of the Company determined on a director fully diluted basis.
(b) For purposes of Section 5.9(a), (i) all calculations of the fully -------------- diluted voting power of the Voting Stock of the Company shall assume the conversion or exchange of all outstanding securities convertible into or exchangeable for such Voting Stock and the exercise of all outstanding rights, warrants and options to the Board pursuant to Section 5acquire such Voting Stock, regardless of whether such rights of conversion, exchange, purchase or acquisition are then exercisable, and (iiiii) any voting rights of the date Shares and any shares of Common Stock issuable or issued upon the conversion of the Shares or issued in payment of dividends on which the Investor (including SK ecoplant Shares shall be disregarded and SPV) excluded from any determination of the amount of Voting Stock owned by Purchaser and its Subsidiaries beneficially own less than five percent Affiliates.
(5.0%c) Purchaser agrees that it will not form, or encourage the formation of, a "group" within the meaning of Section 13(d)(3) of the Exchange Act, to effect or acquire control of the Company.
(d) Purchaser agrees that with respect to any election of directors by the holders of Common Stock, it will (i) vote all shares of Common Stock then issued and outstandingowned by it either, at Purchaser's election, (x) in the Investor (including SK ecoplant and same proportion as the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived votes cast by the Company or the Board, or as contemplated by this Agreement:
(a) all other than Permitted Purchases and purchases of Preemptive Right Shares, directly or indirectly, acquire beneficial ownership holders of Common Stock and/or Common Stock Equivalents and/or any instrument that gives or (y) in the Investor manner recommended by the economic equivalent Company's then Board of ownership of an amount of securities of Directors and (ii) as long as the Company is not in breach of Section 5.6, not solicit proxies in opposition to the slate of ----------- nominees proposed by the Company's then Board of Directors.
(a “Derivative”), except, nothing in e) The provisions of this Section 2.1(a) 5.9 shall prevent terminate and be of no further ----------- force or prohibit effect upon the Investor from investing in a fund with respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, earlier of (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the CompanyApril 15, or 2004 and (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are term is defined in Regulation 14A under the Exchange ActCertificate of Designation), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy (other than pursuant to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the SEC with respect to the Company or any securities of the Company;
(i) request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or limit in any manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereof.
Appears in 1 contract
Standstill. During the period Cooperation Period, the D. E. Shaw Parties will not, and will cause their controlled Affiliates and their collective Covered Persons acting on their behalf (such periodcollectively with the D. E. Shaw Parties, the “Standstill TermRestricted Persons”) commencing as to not, directly or indirectly, without the prior consent, invitation, or authorization of the First Closing Date and continuing until the later of (i) the second (2nd) anniversary of the Second Closing Date, (ii) the date on which the Investor ceases to have the right to designate a director to the Board pursuant to Section 5, and (iii) the date on which the Investor (including SK ecoplant and SPV) and its Subsidiaries beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor (including SK ecoplant and the SPV) and its Subsidiaries shall not do any of the following, except as approved, invited or waived by the Company or the Board, or as contemplated by this Agreementin each case, in writing:
(ai) other than Permitted Purchases and purchases acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of Preemptive Right Shares, directly record or indirectly, acquire beneficial ownership of any shares of Common Stock and/or or securities convertible into shares of Common Stock Equivalents and/or Stock, or engage in any instrument that gives the Investor the economic equivalent swap or hedging transactions or other derivative agreements of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 2.1(a) shall prevent or prohibit the Investor from investing in a fund any nature with respect to which any shares of Common Stock or securities convertible into shares of Common Stock, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in the Investor does not have D. E. Shaw Parties (together with their Affiliates) having beneficial ownership of, or share decision-making authority over investment aggregate economic or divestment decisionsvoting exposure to, more than 7.5% of the Common Stock outstanding at such time;
(bii) make a tender, exchange (A) call or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any call (publicly or otherwise), alone or in concert with others, a meeting of the stockholders Company’s shareholders (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company or propose engage in any matter to be voted upon by the stockholders “withhold” or similar campaign;
(iii) make any request for any shareholder list or similar materials or other books and records of the CompanyCompany or any of its subsidiaries, whether pursuant to Section 220 of the Delaware General Corporation Law or any other statutory or regulatory provisions providing for shareholder access to books and records of the Company or its Affiliates;
(iiiv) propose engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act but without giving effect to any of the exclusions from such definition under SEC rules, including without limitation the exclusion relating to solicitations of ten (10) or nominate for election fewer shareholders) of proxies with respect to the Board any person whose nomination has not been approved by a majority election or removal of directors of the Board Company or any other matter or proposal relating to the Company or become a “participant” (excluding as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Investor DesigneeExchange Act) in any such solicitation of proxies;
(v) disclose, if anyother than as is consistent with the Board’s recommendation in connection with such matter, to any Third Party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a shareholder vote during the Cooperation Period (it being understood that instructing Third Parties to implement such votes or consents in a ministerial manner in accordance with this Agreement would not be a violation of this provision);
(dvi) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, such offer or proposal is referred to as an “Acquisition Proposal”);
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or knowingly seek to advise advise, encourage or influence any PersonThird Party, other than as is consistent with the Board’s recommendation on such matter, with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company;
(fvii) deposit take any securities action in support of or make any proposal, announcement or request, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to, (A) any change in the number, term or identity of directors of the Company or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement, (B) any change in the business, capitalization, capital allocation policy or dividend policy of the Company or sale, spinoff, splitoff or other similar separation of one or more business units or any other Extraordinary Transaction, (C) any other change to the Board or the Company’s management, business or corporate or governance structure, (D) any waiver, amendment or modification to the Organizational Documents, (E) causing the Common Stock to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a voting trust or subject any class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) knowingly encourage or advise any arrangement Third Party or agreement knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the voting of such securities, including the granting giving or withholding of any proxy relating to, or other authority to vote, any Common Stock, or (other than pursuant B) conducting any type of referendum relating to this Agreement);
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving (including for the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction avoidance of doubt with respect to the Company’s management or the Board) (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter);
(ix) form, join, knowingly encourage or knowingly participate in or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act, with respect to any shares of Common Stock or securities convertible into shares of Common Stock, other than solely with Affiliates of the D. E. Shaw Parties with respect to any shares of Common Stock or securities convertible into shares of Common Stock now or hereafter owned by them;
(x) enter into a voting trust, arrangement or agreement, or subject any shares of Common Stock or securities convertible into shares of Common Stock to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case without the prior written consent other than (A) this Agreement (B) solely with Affiliates of the Board D. E. Shaw Parties or (a transaction described C) granting proxies in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”)solicitations approved by the Board;
(hxi) act other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer, or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, shares of Common Stock or any voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xii) institute, solicit, knowingly assist or join as a party any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in concert accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing or participating in bona fide commercial or legal disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xiii) make any disclosure or announcement, either publicly or in a manner reasonably likely to result in or require public disclosure, regarding any intent, purpose, place or proposal with respect to the Board, the Company, its management, policies or affairs, strategy, operations, financial results, any of its securities or assets or this Agreement, except in a manner consistent with the Press Releases (as defined below) and the other provisions of this Agreement;
(xiv) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in clauses each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal. The Restricted Persons will instruct their respective Representatives acting on their behalf to comply with this Section 2(c) and any failure by such Representatives to comply with such instructions shall be deemed a breach by the D. E. Shaw Parties of this Section 2(c). The restrictions in this Section 2 shall terminate automatically upon any material breach of this Agreement by the Company (aincluding, without limitation, a failure by the Company to appoint any of the New Directors or any Replacement New Director, as applicable, to the Board in accordance with Section 1, a failure to form the Business Review Committee or adopt the Business Review Committee Charter, a failure to perform any of the actions contemplated in Section 1(f), or a failure by the Company to issue the Press Releases (as defined below) through in accordance with Section 3) upon five (g5) abovebusiness days’ written notice by any of the D. E. Shaw Parties to the Company if such breach has not been cured within such notice period (or immediately upon such notice if such breach is incapable of being cured); provided, orthat the D. E. Shaw Parties (i) specify in such written notice, in reasonable detail, the material breach on which they are relying to terminate its obligations under this Section 2 and (ii) are not in material breach of this Agreement at the time such notice is given or during the notice period. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including, without limitation, the restrictions in this Section 2) will prohibit or restrict any of the Restricted Persons from (A) making any factual statement to comply with any subpoena, legal requirement, or other legal process or to respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person) or making any regulatory filing required pursuant to the Exchange Act or any other applicable regulatory regime (provided, that any such legal requirement or regulatory filing does not arise from or relate to an action by a Restricted Person that would otherwise violate Section 2(a) or this Section 2(c) and any such statement, whether or not in a regulatory filing, does not otherwise violate Section 2(a) or this Section 2(c)), (B) communicating privately with the Board or any of the Company’s senior officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, result in or require the Company or the D. E. Shaw Parties to make public disclosure (of any kind) with respect thereto, (C) taking actions in furtherance of identifying and nominating director candidates in connection with the 2025 Annual Meeting, so long as such actions are not intended to, and would not reasonably be expected to, result in or require the Company or the D. E. Shaw Parties to make public disclosure (of any kind) with respect thereto, (D) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, or (E) negotiating, evaluating and/or trading, directly or indirectly, form, join or in any way participate in a “partnershipindex fund, limited partnershipexchange traded fund, syndicatebenchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, or other group” as such terms are used in the rules of the SEC with respect to the Company or any but not primarily consist of, securities of the Company;
(i) request or propose to . Furthermore, for the Board or the Company (or any avoidance of its officersdoubt, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 2.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 2.1 Agreement shall prevent, restrict, encumber, or limit be deemed to restrict in any manner: (A) way the Investor or any New Directors in the exercise of its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company after the Second Closing Date that it has entered into a definitive agreement with a Third Party for a transaction involving a Business Combination; (B) the Investor Designee from performing its duties as a member of the Board; or (C) the Investor or any of its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Purchase Agreement, Joint Venture Agreement, or the Preferred Distributor Agreement, in each case, in accordance with the terms hereof and thereoffiduciary duties.
Appears in 1 contract
Sources: Cooperation Agreement (L3harris Technologies, Inc. /De/)