Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company; (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary; (c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders; (d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary; (f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary; (g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary; (h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary; (i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or (j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 5 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. Executive Each Stockholder agrees that, until such time that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members such Stockholder beneficially owns Voting Stock representing less than 5% of the Boardoutstanding shares of Common Stock (on an as-converted basis), none of it or its Affiliates will, directly or indirectly, do any of the following unless requested or approved in any manner (advance in writing by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Company:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to [Reserved.]
(b) acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquire, acquire any shares of Preferred Stock or Common Stock (including any derivative securities convertible into or exchangeable for, contracts or instruments in any voting securities way related thereto) of the Company such that after such acquisition the Stockholder and its Affiliates or any Subsidiary, other direct or indirect parent of such Stockholder would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 49.99% of the outstanding voting securities shares of Common Stock (on an as-converted basis); provided that the foregoing restriction in this Section 3.2(b) shall not apply to any acquisition (i) pursuant to Section 4.2 (Preemptive Rights) of this Agreement or any Stockholder’s exercise of its Right of First Refusal in connection with a Transfer that is permitted by Section 3.1 or (ii) that is the result of operation of Section 10 (Anti-Dilution Adjustments) of the CompanyCertificate of Designations;
(bc) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is used in within the proxy rules meaning of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 14a-1 under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in vote any manner whatsoever any person or entity with respect to the voting of any voting securities Voting Stock of the Company or any Subsidiary;
(c) initiateits subsidiaries, propose or “solicit” (as such term is used in the proxy rules call or seek to call a meeting of the Securities and Exchange Commission) Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders or seek the removal of any director from the Board of the Company or any Subsidiary for the approval of stockholder proposals whether made (other than pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation Article II of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersthis Agreement);
(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the Company or any of its subsidiaries or their securities or assets (except (i) any nonpublic proposal to the Board that would not require the Company, such Stockholder or any other Person to make any public announcement or other disclosure with respect thereto or (ii) any public disclosure in any filings by the Stockholder or its Affiliates with the SEC to the extent required by applicable law or stock exchange rules);
(e) form, join or in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act Act) in connection with respect to any voting securities Voting Stock of the Company or the Subsidiaries;
(e) acquireits subsidiaries, offer to acquire including with any other Stockholder or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of its Affiliates; provided that taking any action as required by this Agreement shall not constitute a violation of this Section 3.2(e); provided further that the assetsforegoing restriction in this Section 3.2(e) shall not apply to any action taken in connection with the previously announced merger of Charter Communications, tangible Inc. and intangible, the Liberty Broadband Stockholder and shall not apply upon completion of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiarysuch merger;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in would reasonably be expected to cause or require of the Company having to make a public announcement regarding any actions prohibited by this Section 3.2;
(g) contest the validity or enforceability of this Section 3.2; or
(h) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, assist or encourage, any other persons to do any of the matters referred foregoing; provided, however, that nothing contained in this Section 3.2 shall limit, restrict or prohibit (i) any confidential, non-public discussions with or communications or proposals to management or the Board by the Stockholder, its Affiliates or representatives related to any of the foregoing, (ii) a Stockholder’s ability to vote, Transfer, convert, exercise its rights under Section 4.2 (Preemptive Rights) or Section 3.3 (Right of First Refusal) or otherwise exercise rights with respect to its Common Stock or Preferred Stock in accordance with the terms and conditions of this Agreement and the Certificate of Designations or (iii) the ability of any Director to vote or otherwise exercise his or her duties or otherwise act in his or her capacity as a member of the Board; provided, further, that, for the avoidance of doubt, any shares of Preferred Stock and Common Stock held by a Stockholder or its Permitted Transferee shall be subject to the terms and restrictions set forth in this Agreement and the Certificate of Designations, including the limitations on voting set forth in Section 12 of the Certificate of Designations. Notwithstanding the foregoing, the restrictions set forth in this Section 3.2 shall not apply if any of the following occurs (provided, that, in the event any matter described in clauses (a) through or (jb) of this Standstillparagraph has occurred and resulted in the restrictions imposed under this Section 3.2 ceasing to apply to a Stockholder, or otherwise intentionally takethen, or solicitin the event the transaction related to such matter has not occurred within twelve (12) months of the date on which the Stockholder was released from such restrictions, or cause or encourage others then so long as such transaction is not being actively pursued at such time, the restrictions set forth in this Section 3.2 shall thereafter resume and continue to take, apply in accordance with their terms (provided that such restrictions shall not resume and continue to apply if such Stockholder has publicly taken any tangible steps with respect to any action inconsistent or matter that would be prohibited by this Section 3.2 and such Stockholder is at that time continuing to pursue such action or matter, in which case such restrictions shall resume and continue to apply following such time as such Stockholder has ceased to pursue such action or matter)): (a) in the event the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (including, but not limited to, beneficial ownership) Voting Stock of the resulting corporation having 50% or less of the votes that may be cast generally in an election of directors if all outstanding Voting Stock were present and voted at a meeting held for such purpose; or (b) in the event that a tender offer or exchange offer for at least 50.1% of the Capital Stock of the Company is commenced by a third person (and not involving any breach, by a Stockholder, of this Section 3.2), which tender offer or exchange offer, if consummated, would result in a Change of Control, and either (1) the directors (excluding any Directors) recommend that the stockholders of the Company tender their shares in response to such offer or do not recommend against the tender offer or exchange offer within ten (10) business days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (2) the directors (excluding any Directors) later publicly recommend that the stockholders of the Company tender their shares in response to such offer. Notwithstanding the foregoing, solely with respect to the Liberty Broadband Stockholder, references in this Section 3.2 to Affiliates shall mean Affiliates acting at the direction of or in concert with the foregoingLiberty Broadband Stockholder or any of its Permitted Transferees and any of the foregoing Persons’ respective Subsidiaries.
Appears in 4 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.), Stock Exchange Agreement (Comscore, Inc.)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the Expiration Date (such period, neither Executive nor any of his affiliates or persons or entities the “Standstill Period”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents consents;
(b) knowingly encourage or matters presented advise any other Person or assist any Person in so encouraging or advising any Person with respect to the Companygiving or withholding of any proxy, consent or other authority to vote (other than such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or its Subsidiaries’ stockholdersact in concert with any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(d) form(i) engage in, join or become a party to, any way participate in a “group” within the meaning swap or hedging transaction or other derivative agreement of Section 13(d)(3) of the Exchange Act any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any voting securities third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or clause (ii) if such acquisition or transaction would result in the SubsidiariesInvestors having beneficial ownership of greater than 9.99% of the Company’s outstanding common stock;
(e) acquiresell, offer to acquire or agree to acquiresell, directly or indirectly, alone through swap or in concert with others, by purchase, exchange hedging transactions or otherwise, (i) any of voting rights decoupled from the assets, tangible and intangible, underlying common stock of the Company or held by the Investors to any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryThird Party;
(f) arrange, make or in any way participate, directly or indirectly, in any financing for tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the purchase Company or any of any voting its subsidiaries or the Company’s securities or securities convertible or exchangeable into or exercisable for any voting securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (each, an “Extraordinary Transaction”), it being understood and agreed that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any Subsidiary;
(g) otherwise actsuch transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board; or make, directly or indirectly, any proposal, either alone or in concert with others, to seek to propose to the Company or any Subsidiary or the Board that would reasonably be expected to require a public announcement regarding any of their respective stockholders the types of matters set forth above in this paragraph;
(g) enter into a voting trust or make proxy, arrangement or agreement or subject any public statement Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or hereafter owned by them and other transaction involving than granting proxies in solicitations approved by the Company or any SubsidiaryBoard;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise (i) seek, alone or in concert with others, election or appointment to to, or representation on, the Board, or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, except as set forth herein, or (ii) seek, alone or in concert with others, the Board removal or the removal resignation of any member of the Board, or propose any matter to be voted upon by Board (other than the stockholders of the Company or any SubsidiaryNew Director);
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise);
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to amend, waive or terminate any provision of this Standstill or seek permission to or books and records;
(k) make any public announcement statement or public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to the Company’s certificate of incorporation or By-Laws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 6; provided, however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any provision of proceeding initiated by, or on behalf of, the StandstillCompany against a Restricted Person, or (D) responding to or complying with a validly issued legal process;
(m) enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investors are prohibited from taking pursuant to this paragraph 6; or
(jn) announce an intention make any request or submit any proposal to do, amend or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of waive the actions restricted or prohibited under clauses (a) through (j) terms of this StandstillAgreement, or take any action that might in each case which would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, such request or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingproposal.
Appears in 3 contracts
Sources: Investment Agreement (Cooperman Leon G), Letter Agreement (Glen Capital Partners Focus Fund, L.P.), Board Matters Agreement (Lionbridge Technologies Inc /De/)
Standstill. Executive agrees that for a period 10.1. From and after the Closing, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority the Investor hereby agrees that until such time as the earlier to occur of all members (x) it ceases to Beneficially Own 5% of the BoardTotal Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in any manner (a collared hedging transaction of the obligations pursuant to this Common Stock following the conclusion of the period set forth in Section 13 being referred to as, the “Standstill”):9;
(ac) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way knowingly assist, by purchaseor knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender offer, or exchange offer, through merger or other business combination involving the acquisition or control of another person or entity, or otherwiseCompany, any direct of its Subsidiaries or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities assets of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent its Subsidiaries constituting a significant portion of the outstanding voting securities consolidated assets of the Company;
(b) makeCompany and its Subsidiaries, or in any way participate in, directly or indirectly, alone or in concert with others, (iii) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Section 14 of Rule 14a-8 under the Exchange Act) Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of proxies Designations, otherwise seek the election or consents to vote, whether subject to or exempt from the proxy rulesappointment to, or seek to adviserepresentation on, encourage or influence the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any manner whatsoever voting trust or subject any person Voting Stock to any arrangement or entity agreement with respect to the voting of any Voting Stock that is inconsistent with the voting securities obligations of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryInvestor hereunder;
(f) arrangeexcept as expressly contemplated by this Agreement or the Certificate of Designations, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek representation on or to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryits Subsidiaries;
(ig) make form, join or in any publicly disclosed proposal, public statement, public inquiry or public disclosure way participate in a “group” (within the meaning of any intention, plan, or arrangement (whether written or oralSection 13(d) inconsistent with of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement Exchange Act) with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do Company involving any of the actions restricted or prohibited items described under clauses (a) through (jf) of this Standstill, or hereof;
(h) knowingly take any action that might which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in actions described under clauses (a) through (jf) of this Standstill, or hereof; or
(i) otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoingforegoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 3 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Arthrocare Corp), Securities Purchase Agreement (OEP AC Holdings, LLC)
Standstill. Executive The Stockholder agrees that that, for a period of 18 months from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor the Stockholder will not, and will not cause or permit any of his its directors, officers, partners, employees, representatives, financial, legal, accounting and other advisers and agents, including persons who after the date of this Agreement cease to be within one of the foregoing categories (collectively, “Representatives”) or affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited associates (as such terms are defined in writing by Rule 12b-2 under the Board, acting by resolution approved by a majority of all members of the Board, Exchange Act) to (i) directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) indirectly acquire, offer or offer, propose to acquire, solicit an offer to sell or agree to acquire, directly any securities, debt obligations or indirectly, alone assets (or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities interests therein) of the Company or any Subsidiaryof its subsidiaries or any rights or options to acquire any such securities, debt obligations or assets (for purposes hereof, “securities” shall include, without limitation, (x) all rights to acquire securities pursuant to the exercise of any rights in connection with any option, warrant, convertible or exchangeable security or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (y) any economic interest relating to securities, including without limitation, pursuant to a cash settled option or other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) makederivative security, contract or instrument in any way related to the price of the underlying security), (ii) participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules solicitation of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesproxies, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting vote of any voting person, regarding any securities or debt obligations of the Company or any Subsidiary;
of its subsidiaries, (ciii) initiateengage, or offer, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectlyengage, in any financing for the purchase of any voting securities merger or securities convertible other business combination or exchangeable into or exercisable for any voting securities or assets of the Company acquisition transaction or any Subsidiary;
(g) otherwise act, alone tender or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender exchange offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization or any purchase or sale of any material amount of assets or equity or debt securities or other transaction involving indebtedness of or regarding the Company or any Subsidiary;
of its subsidiaries, (hiv) seekseek or propose to influence or control the Company’s management or policies, alone or in concert with others, to control, change or influence including the management, the Board or management and policies of the Company its subsidiaries, (v) advise, assist, encourage, finance or invest in any Subsidiary, or otherwise seek, alone or person in concert connection with others, election or appointment to or representation on, or to nominate or propose the nomination any of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or (vi) disclose any request plan, intention or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing, (vii) make any communications with the Company or prohibited under clauses its Representatives that could require the Company to make any public announcement or (aviii) through (j) make any request to waive or amend any provision of this Standstill, agreement or to permit you to take any action that might result specified herein, in each case without the prior written approval of the Company. Nothing in this paragraph shall be deemed to prevent the Stockholder’s Representatives from engaging, in the Company having to make a public announcement regarding any ordinary course of business, in brokerage, asset management, trust, underwriting, market making and other similar financial services ordinary course business activities involving securities of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 3 contracts
Sources: Stockholder Agreement (Gramercy Capital Corp), Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.), Agreement for Sale of Membership Interests (Gramercy Capital Corp)
Standstill. Executive agrees that for a period of 18 months from (a) During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of each Wynnefield Party shall not, and shall cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Representatives not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyseek, alone or in concert with others, by purchase(A) to call a meeting of stockholders, tender offer(B) representation on the Board, exchange offer, through except as specifically contemplated in Section 1 of this Agreement or (C) the acquisition or control removal of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities member of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(bii) makesolicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the shares of the Common Stock, or in any way participate infrom the holders of the shares of Common Stock, directly or indirectly, alone or in concert with others, any become a “solicitationparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) of proxies in or consents to voteassist, whether subject to or exempt from the proxy rulesencourage, or seek to advise, encourage advise or influence any Third Party (as defined below) in any manner whatsoever any person or entity with respect to the voting “solicitation” of any voting securities of the Company proxy, consent or any Subsidiary;
(c) initiate, propose or “solicit” other authority (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate influence that is consistent with the CompanyBoard’s or its Subsidiaries’ stockholders or others recommendation in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholderssuch matter);
(diii) form, (A) form or join or any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities shares of Common Stock (for the avoidance of doubt, excluding any group composed solely of the Company Wynnefield Parties and their Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Subsidiaries;
Company’s stockholders (eother than to the Wynnefield Parties and their Affiliates and the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) acquire, offer to acquire or (C) agree to acquire, directly deposit or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) deposit any shares of the assets, tangible and intangible, of the Company Common Stock or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust or similar arrangement (other than (x) to the Wynnefield Parties and their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case, of the Wynnefield Parties and their Affiliates);
(iv) execute any written consent as a stockholder with respect to the Company or its Common Stock, except as contemplated by this Agreement;
(v) without the approval of the Board, separately or in conjunction with any Third Party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly (including in communications to the media) propose or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other similar business transaction involving the Company or a material amount of the assets or businesses of the Company or actively encourage, initiate or support any other Third Party in any such activity; provided that the Wynnefield Parties shall be permitted to sell or tender their shares of Common Stock or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction; and provided further that if a Third Party (not a Party or an Affiliate of a Party) commences an unsolicited tender offer or exchange offer for all of the outstanding shares of Common Stock or other Voting Securities that is recommended by the Board, then the Wynnefield Parties shall similarly be permitted to commence a tender offer or exchange offer for all of the outstanding shares of Common Stock or other Voting Securities at the same or higher consideration per share, unless the decision of the Board to recommend such Third Party unsolicited tender offer or exchange offer is supported by a majority of Wynnefield Designees serving on the Board;
(vi) present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(vii) seek to have the Company waive, amend or modify any provisions of the Company’s Certificate of Incorporation or Bylaws;
(viii) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or make any request pursuant to Rule 14a-7 under the Exchange Act or otherwise, except as is reasonably necessary to enable the Wynnefield Parties to effect a tender offer or exchange offer permitted under Section 5(a)(v);
(ix) institute, solicit or join, as a party, or remain as a class member in any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Wynnefield Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Wynnefield Parties or ▇▇▇▇▇▇ ▇▇▇▇ and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of the Wynnefield Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 5(a)(ix) shall apply mutatis mutandis to the Company and its directors, officers, partners, members, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the Wynnefield Parties);
(x) comment publicly (including in communications to the media) concerning the Company’s management, policies, strategy, operations, financial results or affairs or any transactions involving the Company or any of its subsidiaries, except (i) with respect to any Extraordinary Transaction that has not been approved by a majority of the Wynnefield Designees on the Board, (ii) with respect to the Wynnefield Parties’ commencing of a tender offer or exchange offer in accordance with Section 5(v), and (iii) as otherwise expressly permitted by this Agreement;
(xi) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to rights decoupled from the Company or any Subsidiary or underlying securities held by any of their respective stockholders or make any public statement with respect the Wynnefield Parties to any mergerperson in a private transaction (or a series of related private transactions) that is not (A) a party to this Agreement, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any a member of the Board, (C) an officer of the Company, or propose (D) an Affiliate of any matter Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would result in the Wynnefield Parties selling in excess of 4.9% of the shares of Voting Securities beneficially owned by the Wynnefield Parties at such time, other than to a Third Party that agrees to be voted upon bound by the provisions of Section 5 of this Agreement during the term of this Agreement; or
(xii) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, partners, members, employees, agents or Affiliates of the Company, directly or indirectly, amend or waive any provision of this Agreement (including this Section 5 (a)(xii)). Notwithstanding anything to the contrary contained in this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Wynnefield Parties nor their respective Affiliates shall be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of the Company, in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Wynnefield Parties or their respective Affiliates, the Company or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to the Company of any such director or officer and applicable law, rules or regulations; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Wynnefield Party, provided that a breach by such Parties of this Agreement is not the cause of the applicable requirement; (C) privately communicating to any of their potential investors or investors factual information regarding the Company, provided that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed; or (D) responding to or complying with a validly issued legal process.
(b) The provisions of this Section 5 shall not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to the Company and its stockholders and the Company Policies. Except as otherwise provided in this Agreement, the provisions of this Section 5 shall also not prevent the Wynnefield Parties from freely voting their respective shares of Common Stock.
(c) During the Standstill Period, each Wynnefield Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of the Company or any Subsidiary;other persons to engage in actions which, if taken by such Party, would violate this Agreement.
(d) Anything to the contrary in this Section 5 or elsewhere in this Agreement (including Section 2) notwithstanding, the Wynnefield Parties shall not be prohibited from (i) make nominating directors for election at the 2021 Annual Meeting, (ii) submitting proposals for consideration by stockholders at the 2021 Annual Meeting; (iii) soliciting proxies for the election of its director nominees or approval of its stockholder proposals at the 2021 Annual Meeting, in compliance with Regulation 14A under the Exchange Act; (iv) requesting that a proposal for consideration by stockholders at the 2021 Annual Meeting be included in the Company’s proxy materials for the 2021 Annual Meeting, in compliance with Rule 14a-8 under the Exchange Act; or (v) making any publicly disclosed proposalpublic or private communication in connection with any of the foregoing, in compliance with Rule 14a-9 and any other applicable provision of Regulation 14A under the Exchange Act. Anything to the contrary in Section 2 or elsewhere in this Agreement notwithstanding, the Company shall not be prohibited from (i) soliciting proxies in opposition to any nomination, solicitation or proposal permitted to be made by the Wynnefield Parties pursuant to this Section 5(d), in compliance with Regulation 14A under the Exchange Act or (ii) making any public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent private communication in connection with the foregoing, or make or disclose in compliance with Rule 14a-9 and any request or proposal to amend, waive or terminate any other applicable provision of this Standstill or seek permission to or make any public announcement with respect to any provision of Regulation 14A under the Standstill; orExchange Act.
(je) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any The provisions of the actions restricted or prohibited under clauses (ai) through (jxii) of this Standstill, or take any action that might result in Section 5(a) shall cease to apply following the Company having to make a public announcement regarding any of an Extraordinary Transaction that has been approved by the Board and which is opposed by a majority of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with Wynnefield Designees serving on the foregoingBoard.
Appears in 3 contracts
Sources: Settlement Agreement (Wynnefield Partners Small Cap Value Lp I), Settlement Agreement (MVC Capital, Inc.), Settlement Agreement (MVC Capital, Inc.)
Standstill. Executive Subject to the provisions of the sentence next following, the Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonuntil January 1, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
1999 it and its Affiliates shall not (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any voting securities, direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants rights or options to acquire any assets voting securities, direct or indirect rights or options to acquire any voting securities, or securities or instruments convertible into voting securities, of the Company or any Subsidiary;
Company, (fb) arrangemake, or in any way participate, directly or indirectly, in any financing for "solicitation" of "proxies" to vote (as such terms are used in the purchase proxy rules of the SEC) securities of the Company, or seek to advise or influence any person or entity with respect to any voting of any securities of the Company, (c) form, join or in any way participate in a "group" within the meaning of Section 13(d)(3) of the Exchange Act, with respect to any voting securities of the Company, (d) make any public announcement with respect to or securities convertible make or exchangeable into submit a proposal or exercisable offer (with or without conditions) for any voting the securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other extraordinary transaction involving the Company or any Subsidiary;
of its Subsidiaries, (he) seeksubmit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from any regulatory agency with respect to an acquisition of the Company or any of its securities or assets, (f) otherwise act alone or in concert with others, others to control, change or influence seek to control the management, the Board board of directors or policies of the Company; or (g) propose any of the foregoing unless and until such proposal is specifically invited by the Company. Based on the representations of Rothschild to the Company that Affiliates of Rothschild (which representation Rothschild hereby reaffirms) not under control of Rothschild have no access to any of the internal information or files of Rothschild and receive no information, recommendations or advice from Rothschild, the Company agrees that the prohibitions of the preceding sentence shall not apply to any SubsidiaryAffiliates of Rothschild that are not under the control of Rothschild and are engaged in the regular business of trading in publicly-traded securities, so long as such affiliates have not received, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate been given access to, the Board or the removal of any member of the BoardConfidential Information and have not received any instructions, recommendations or propose any matter advice pertaining to be voted upon by the stockholders an investment in or control of the Company or from any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal party having access to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingConfidential Information.
Appears in 3 contracts
Sources: Investment Agreement (Pacific Gulf Properties Inc), Investment Agreement (Five Arrows Realty Securities L L C), Investment Agreement (Five Arrows Realty Securities L L C)
Standstill. Executive agrees that During the term of his employment and for a period of 18 six months from after the date of the Executive’s termination of employment for any reasonis terminated, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone indirectly or in concert with othersany other person, engage in any of the following:
(i) purchase, offer to purchase, or agree to purchase or otherwise acquire, by means of a purchase, tender offer, or exchange offer, through the acquisition business combination or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants other manner (including rights or options to acquireacquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable forfor Common Stock of the Company, that would result in the Executive, the Executive’s affiliates, and the members of any “group” of persons with which the Executive or his affiliates are acting in concert beneficially owning, in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting securities power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Subsidiaryof its affiliates, other than including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the acquisition in the aggregate vote of less than one-half any holder of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jiii) announce an intention to dobe employed by any person that, directly or to enter into any arrangement or understanding with others (whether written or oral) to dothrough its affiliates, or to finance, intentionally advise, enable, assist or encourage others to do engages in any of the actions restricted foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or prohibited under clauses (a) through (j) other awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in connection with or as a result of this Standstill, or take any action that might result in the Executive’s employment with the Company having or service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to make a public announcement regarding any be in “play” through no act of the matters referred Executive, the Executive will no longer be subject to in clauses (a) through (j) the limitations of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSections 7(d).
Appears in 3 contracts
Sources: Separation Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. Executive Each ADAR1 Party agrees that during the period commencing on the Effective Date and ending immediately following the final certification of the voting results for a period the 2028 Annual Meeting of 18 months from Stockholders of the date of Executive’s termination of employment for any reasonCompany (such period, the “Standstill Period”), neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner manner, acting alone or in concert with others, take any of the following actions without the prior written consent (email being sufficient) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Company or its Board of Directors (as defined below):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of capital stock of the Company generally on a pro rata basis), directly or indirectly, alone or in concert with others, by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining or entitymaintaining a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), through swap or hedging transactions or otherwise, beneficial ownership of any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities capital stock of the Company or any Subsidiary, other than voting rights decoupled from the acquisition underlying voting securities that would result in the aggregate of less ADAR1 Parties and their Affiliates owning, controlling or otherwise having any beneficial or other ownership interest of, in the aggregate, more than one-half of one percent 4.9% of the outstanding voting securities shares of the CompanyCommon Stock outstanding at such time;
(b) other than in accordance with the recommendations of the Company’s Board of Directors (the “Board of Directors”), (i) make, submit, initiate, encourage or participate in (or provide notice of, or publicly disclose, an intention to do any way participate inof the foregoing) any proposal with respect to, or (ii) engage, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies, consents or consent revocations or otherwise become a “participant in a solicitation” (as such term is used defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) with respect to: (A) any change in the proxy rules composition, number or term of directors serving on the Board of Directors, the filling of any vacancies on the Board of Directors, the nomination or recommendation for nomination of a person for election at any Stockholder Meeting (as defined in Section 5.14) at which the Company’s directors are to be elected, or any election contest or removal contest with respect to the Company’s directors, (B) any change in the capitalization, dividend policy, or share repurchase programs or practices of the Securities and Exchange Commission promulgated Company, (C) any other change in the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, (D) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, (E) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 14 12(g)(4) of the Exchange Act, (F) of proxies any stockholder proposal pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or consents to vote, whether subject to bringing any other business at or exempt from the proxy rulesbefore any Stockholder Meeting, or seek (G) any “withhold” or similar campaign with respect to adviseany proposal for consideration or business brought at or before any Stockholder Meeting;
(c) recommend, request, induce, encourage or influence any other person with respect to (i) pursuing any change in, or attempting to influence, the Company’s management, governance, business, operations, strategy, corporate structure, affairs or policies, or (ii) the giving or withholding of any proxy, consent or other authority to vote, or in conducting any manner whatsoever any person or entity type of referendum with respect to the Company, whether binding or non-binding (other than such encouragement, advice or influence that is consistent with the Board of Directors’ recommendation in connection with such matter), provided that nothing shall limit the giving by the ADAR1 Parties or their Affiliates of a proxy or consent in respect of any matter so long as the voting of the shares of capital stock of the Company owned thereby are voted in accordance with the terms of this Agreement where applicable;
(d) call, or request the calling of, a special meeting of the Company’s stockholders, or any voting securities other Stockholder Meeting (or the setting of a record date therefor), including any “town hall” meeting;
(e) make a request for or demand an inspection of a list of the Company’s stockholders or any books and records of the Company or any Subsidiaryof its subsidiaries under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(cf) initiateinstitute, propose solicit, assist or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of join any litigation, arbitration or other proceeding against or involving the Company or any Subsidiary for of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than to (x) enforce the approval provisions of stockholder proposals whether made pursuant this Agreement or the Confidentiality Agreement (as defined in Section 4.5(e) or (y) any counterclaims with respect to Rule 14a-8 any proceeding initiated by or Rule 14a-4 under on behalf of the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with Company in violation of this Agreement (and the Company’s or its Subsidiaries’ stockholders or others in connection with Company agrees that this Section 4.2(f) (including the solicitation of proxies or consents or matters presented exceptions thereto) shall apply mutatis mutandis during the Standstill Period to the Company’s or Company and its Subsidiaries’ stockholdersdirectors, officers, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the ADAR1 Parties);
(dg) form, join in, maintain or in any other way participate in a “partnership, limited partnership, syndicate or other ‘group’” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities the capital stock of the Company (other than a “group” that consists solely of all or some of the Subsidiariespersons parties to this Agreement or Affiliates thereof);
(eh) deposit any shares of capital stock of the Company in a voting trust or similar arrangement or subject any shares of capital stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the ADAR1 Parties or their respective Affiliates and otherwise in accordance with this Agreement;
(i) acquire or agree to acquire, offer offer, seek or propose to acquire, or cause to be acquired or in any way assist or facilitate any other person to acquire or agree to acquire, directly offer, seek or indirectlypropose to acquire, alone or in concert with others, by purchase, exchange or otherwise, ownership (iincluding beneficial ownership) of any of the assets, tangible and intangible, assets or businesses of the Company or any Subsidiary of its subsidiaries or (ii) direct or indirect rights, warrants any rights or options to acquire any such assets of the Company or business from any Subsidiaryperson;
(fj) arrange, or in any way participate, directly or indirectly, in any financing for other than at the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets express written request of the Company or any Subsidiary;
(g) otherwise actBoard of Directors, alone or in concert with otherspropose, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to a merger, business combination, consolidation, saleacquisition of control, tender offer, or exchange offer, restructuringpurchase, reorganizationsale, license or other transfer of assets or securities, any other business combination, dissolution, liquidation, recapitalization reorganization, spin-off or other spin-out, share repurchase or similar transaction involving the Company Company, its subsidiaries or any Subsidiaryits business;
(hk) seeksell, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiaryassign, or otherwise seek, alone transfer or in concert with others, election or appointment to or representation ondispose of its shares of capital stock of the Company, or any rights decoupled from such shares, beneficially owned by them other than in open market sale transactions and block trade brokered sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to nominate any person that, to the ADAR1 Parties’ knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), (i) would result in such person, together with its Affiliates and Associates, owning, controlling or propose otherwise having any beneficial or other ownership interest in the nomination aggregate of more than 4.9% of the Company’s outstanding capital stock at such time or would increase the beneficial ownership interest of any candidate toperson who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the Board or the removal aggregate of any member more than 4.9% of the BoardCompany’s outstanding capital stock at such time, (ii) is listed on SharkWatch50 or propose any matter has otherwise directly or indirectly run or publicly disclosed an intention to be voted upon by run a proxy contest or publicly submitted stockholder nominations or proposals with respect to another publicly-traded company within the stockholders last five years or (iii) is as of the Company or any SubsidiaryEffective Date a Schedule 13D filer with respect to the Company;
(il) make any publicly disclosed proposaldisclose publicly, public statementor privately in a manner that could reasonably be expected to become public, public inquiry or public disclosure of any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, foregoing or make or disclose any publicly request or advance any proposal to amend, modify or waive or terminate any provision of this Standstill Agreement;
(m) engage in any short sale or seek permission to any purchase, sale or make grant of any public announcement option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than in connection with a broad-based market basket or index) that relates to or derives any part of its value from any decline in the market price or value of any securities of the Company, that, in each case, would result in the Seller Affiliates having, in the aggregate, a total short position that exceeds 2.0% of the shares of Common Stock outstanding at such time;
(n) publicly take any action challenging the validity or enforceability of any provision of the Standstillthis Agreement; or
(jo) announce an intention to doparticipate in any negotiations, or to enter into any arrangement discussions, agreements, arrangements or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any person concerning any of the actions restricted foregoing (other than this Agreement) or prohibited under clauses (a) through (j) of this Standstill, encourage or take solicit any action that might result in the Company having person to make a public announcement regarding undertake any of the matters referred to in clauses (a) through (j) of this Standstill, foregoing activities or otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the ADAR1 Parties from (x) communicating confidentially with the Chair of the Board of Directors or the Chief Executive Officer of the Company (or any other individuals in the Company authorized by such individuals) regarding any matter, so long as such communications are not intended to, and could not reasonably be expected to, require any public disclosure of such communications, (y) communicating confidentially with the ADAR1 Parties’ Affiliates and the managing members, principals, partners (other than a partner who is solely a limited partner), directors, officers, general partners, employees and attorneys of such party and of its Affiliates, or (z) tendering shares, receiving payment for shares or otherwise participating in any transaction that is consummated following the Closing involving a third party approved by the Board of Directors on the same basis as other stockholders of the Company.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ADAR1 Capital Management, LLC), Stock Purchase Agreement (Keros Therapeutics, Inc.)
Standstill. Executive agrees that for (a) During the Standstill Period, unless otherwise approved by the Board or by ClearSign, each Investor Party shall not, and 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 acquisition of control of another person, by joining a period group, through swap or hedging transactions or otherwise, (A) any securities of 18 months ClearSign, any rights decoupled from the date underlying securities of Executive’s termination 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 Common 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) make any public announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of ClearSign or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to 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 Change of Control;
(iii) in respect of those matters enumerated in Section 3 hereof, other than as may be required by reason of employment for in a broker-dealer in the 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 reasonsolicitation of proxies or written consents to vote any Voting Securities, neither Executive nor 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 his affiliates binding or persons nonbinding referendum with respect to any Voting Securities, or entities acting at his direction assist or with his assistance will, unless specifically invited participate in writing by the Board, acting by resolution approved by a majority of all members of the Boardany other way, directly or indirectly, in any manner solicitation of proxies (or written consents) with respect to, or from the obligations pursuant 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 this Section 13 being referred to asvote any securities of ClearSign (including, the without limitation, by initiating, encouraging or participating in any “Standstill”):withhold” or similar campaign);
(aiv) acquiresell, offer or propose to acquire, solicit an offer agree to sell or agree to acquire, directly or indirectly, alone through swap or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, hedging transactions or otherwise, any direct Voting Securities or indirect beneficial interest in any voting rights decoupled from the underlying securities or direct or indirect rightsheld by any Investor Party to any person who is not (A) a Party to this Agreement, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities (B) a member of the Company Board, (C) an officer of ClearSign or (D) an Affiliate or Associate of any SubsidiaryParty (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 Affiliates, owning, controlling or otherwise having any beneficial or other than the acquisition ownership interest representing in the aggregate in excess of less than one-half of one percent 4.9% of the shares of Common Stock outstanding voting securities of the Companyat such time;
(bv) maketake 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 calling of any special meeting of stockholders to effect such plans or proposals, to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of 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 Certificate of Incorporation, the Bylaws or the Policy 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 way participate inmanner, directly except as expressly permitted by this Agreement;
(vii) call or indirectlyseek to call, or request the call of, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules meeting of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to votestockholders, whether subject to or exempt from not such a meeting is permitted by the proxy rulesGoverning Materials, or seek to adviseincluding, encourage or influence without limitation, a “town hall meeting”;
(viii) deposit any Voting Securities in any manner whatsoever voting trust or subject any person Voting Securities to any arrangement or entity agreement with respect to the voting of any Voting Securities (other than (A) any such voting securities of trust, arrangement or agreement solely between the Company Investor Parties that is otherwise in accordance with this Agreement or any Subsidiary(B) customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(cix) initiateseek, propose or knowingly encourage or advise any person, to submit nominations in furtherance of a “solicitcontested solicitation” (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 election or removal of stockholder proposals whether made pursuant directors with respect to Rule 14a-8 ClearSign or Rule 14a-4 under the Exchange Actseek, or otherwise, or cause or knowingly encourage or attempt to cause or encourage others to initiate take any such stockholder proposal; or otherwise communicate other action with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented respect to the Company’s election or its Subsidiaries’ stockholdersremoval of any directors of ClearSign;
(dx) form, join or in any other way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company Voting 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 Subsidiariesexecution 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;
(exi) acquire, offer demand a copy of ClearSign’s list of stockholders or its other books and records or make any request pursuant to acquire Rule 14a-7 under the Exchange Act or agree to acquire, directly under any statutory or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any regulatory provisions of the assetsState of Delaware providing for stockholder access to books and records (including, tangible and intangiblewithout limitation, lists of the Company or any Subsidiary or (iistockholders) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryClearSign;
(fxii) arrange, make any request or in submit any way participate, directly proposal to amend or indirectly, in any financing for waive the purchase terms of any voting securities or securities convertible or exchangeable into or exercisable this Section 6 other than through non-public communications with ClearSign that would not be reasonably likely to trigger public disclosure obligations for any voting securities or assets of the Company or any SubsidiaryParty;
(gxiii) otherwise actcomment publicly about or disclose in a manner that could reasonably be expected to become public any intent, alone purpose, plan or in concert proposal with othersrespect 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 propose persuade any person to the Company or take any Subsidiary or any of their respective stockholders action or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization such action or other transaction involving otherwise take or cause any action or make any statement inconsistent with any of the Company or any Subsidiary;foregoing.
(hb) seekNotwithstanding anything to the contrary contained in this Section 6, alone each Investor Party shall not be prohibited or in concert restricted from: (A) communicating privately with others, to control, change or influence the management, members of the Board or policies senior officers of the Company or ClearSign regarding any Subsidiarymatter in a manner consistent with communications that may be reasonably made by all stockholders of ClearSign, 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 so long as such communications are not intended to, the Board or the removal of and would not reasonably be expected to, require any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of such communications by any intentionParty or their respective Affiliates or any Third Party, plansubject in any case to any confidentiality obligations to ClearSign of any such director or officer and applicable law, rules or regulations; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or arrangement may have, jurisdiction over such Investor Party; (whether written C) generally fulfilling its obligations to its clients in its role as a broker-dealer or oralan employee of a broker-dealer, provided, that a breach by any Investor Party of this Agreement is not the cause of the applicable requirement; or (D) inconsistent 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 foregoingcircumstances. 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, or make or disclose 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 request or proposal actions to amend, waive or terminate indirectly violate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision Section 6). The provisions of this Section 6 shall also not prevent the Standstill; orInvestor Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 3 hereof).
(jc) announce an intention During the Standstill Period, each Investor Party shall refrain from taking any actions which could have the effect of encouraging, influencing or assisting any Third Party to doengage in actions which, or to enter into if taken by any arrangement or understanding with others (whether written or oral) to doInvestor Party, or to financewould violate this Agreement, intentionally advise, enable, assist or encourage others to do any except as may be required by reason of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result employment in a broker-dealer in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingordinary course.
Appears in 2 contracts
Sources: Cooperation Agreement (ClearSign Technologies Corp), Cooperation Agreement (ClearSign Technologies Corp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership in excess of 15% of the acquisition outstanding shares of Common Stock (based on the latest annual or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary15(d) of the Exchange Act), other than excluding the acquisition in of equity-based compensation pursuant to Section 13 hereof and the aggregate exercise of less than oneany options or conversion of any convertible securities comprising such equity-half of one percent of the outstanding voting securities of the Companybased compensation;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of any voting securities of the Company or any Subsidiarythis Agreement);
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or ▇▇▇▇▇▇ or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the SubsidiariesCommon Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(e) acquirecall or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, offer encourage or assist any other person to acquire initiate or agree to acquirepursue such a proposal or request) or otherwise acting alone, directly or indirectly, alone or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrangesecurities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any way participatetransferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇ to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, ▇▇▇▇▇▇ or their respective stockholders Affiliates or make Associates) to obtain any public statement with respect to waiver, consent under, or amendment of any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryprovision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise seek, alone or in concert with others, election or appointment to or representation onotherwise, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jk) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇ from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required to comply with his fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Fuel Systems Solutions, Inc.), Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. Executive Until the Termination Date, the Investor Group agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonthat, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willexcept as otherwise specifically provided in this Agreement, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members no member of the Board, directly or indirectlyInvestor Group shall, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer way or propose to acquire, solicit an offer to sell or agree to acquirein any capacity, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest except for such actions as Nominee may take in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities his capacity as a director of the Company in support of transactions and initiatives approved or any Subsidiary, other than undertaken by the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;Board:
(b) a. make, or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of (the Exchange Act“SEC”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiaryother matter or proposal;
(c) b. initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of any stockholder proposals proposal, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange ActAct or otherwise;
c. seek to call, or otherwiseto request the call of, or cause call a special meeting of the stockholders of the Company; or, in its capacity as a stockholder, make a request for or encourage take any action to obtain or attempt to cause or encourage others to initiate retain any such stockholder proposal; or otherwise communicate with list of the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersother Company records;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to d. seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to to, or representation on, or to nominate or propose the nomination of any candidate to, the Board Board, except as specifically contemplated in Section 1; or seek the removal of any member of the Board, or propose a change in the composition or size of the Board;
e. form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act, with respect to any matter Voting Securities, deposit any Voting Securities into a voting trust or subject any Voting Securities to any voting agreement (other than solely with other members of the Investor Group with respect to Voting Securities now or hereafter owned by them in accordance with the terms of this Agreement) or take any other action that would limit or otherwise restrict the ability of the Investor Group to vote or cause to be voted upon the Investor Voting Securities held from time to time in accordance with this Agreement;
f. with respect to the Company or the Voting Securities, (i) otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act or (ii) participate in, or take any action pursuant to, any “stockholder access” proposal that may be implemented by the stockholders SEC, whether in accordance with former Rule 14a-11 or otherwise;
g. except at the request of the Board, acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any Voting Securities generally), whether by purchase, tender or exchange offer, directly through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any Voting Securities if, as a result of such acquisition, the members of the Investor Group would beneficially own in the aggregate in excess of 14.5% of the then outstanding Voting Securities;
h. except at the request of the Board, seek, propose, participate in, support, facilitate or assist any third party to seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Subsidiaryof its Affiliates or Associates;
(i) make i. except at the request of the Board, enter into any publicly disclosed proposalarrangements, public statement, public inquiry understanding or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing;
j. make any public statement or public disclosure regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the foregoingprovisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or make would require waiver, amendment, nullification or disclose any request or proposal to amendinvalidation of, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, Agreement or take any action that might result in could require the Company having to make a any public announcement regarding disclosure relating to any of such intent, purpose, plan, proposal or condition; or
k. take any action challenging the matters referred to in clauses (a) through (j) validity or enforceability of this StandstillSection 2, or otherwise intentionally take, request the Company or solicit, Board to agree to amend or cause to waive any provision of this Section 2 either publicly or encourage others in a manner that is reasonably likely to take, any action inconsistent with require the foregoingCompany to disclose the request publicly.
Appears in 2 contracts
Sources: Board Nomination Agreement (Magnetek, Inc.), Board Nomination Agreement (Fundamental Global Partners)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, directly during the Standstill Period, he or indirectlyit will not, in any manner (the obligations pursuant to this Section 13 being referred to asand he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, the “Standstill”):and will cause his or its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities shares of the CompanyCommon Stock;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the Subsidiariesmeaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2011 Annual Meeting or 2012 Annual Meeting as set forth in this Agreement;
(e) acquireseek, offer in any capacity other than as a member of the Board, to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by purchasethis Agreement;
(f) effect or seek to effect, exchange in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Navarre Corp /Mn/)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by this Agreement until the Board, acting by resolution approved by a majority of all members expiration of the BoardCommitment Period, each of the Investors shall not, and shall cause its Affiliates (collectively, “Restricted Persons”) and shall instruct their respective Representatives not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities directors of the Company or any Subsidiary;
(c) initiate, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersconsents;
(db) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, the Board except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board, or propose any matter to be voted upon by the (iii) conduct a referendum of stockholders of the Company or (iv) seek to call, request the call of or join with any Subsidiaryother stockholder in a request to call, a special meeting of the Company’s stockholders;
(c) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act) relating to the Company;
(d) encourage or advise any Person or assist any Person in encouraging or advising any other Person (i) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any Voting Securities, or (ii) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with management’s recommendation in connection with a particular matter, in the case of each of (i) and (ii), solely with respect to the election or removal of directors;
(e) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with the other Investors and Affiliates of the Investors with respect to Voting Securities;
(f) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of, any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Investors having beneficial ownership of more than 10.0%, or economic exposure to more than 10.0%, of the outstanding Company Shares;
(g) enter into a voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement, other than (i) this Agreement, (ii) solely with the other Investors or Affiliates of the Investors, or (iii) granting proxies to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting;
(h) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, or (ii) any waiver, amendment or modification to the Governing Documents of the Company;
(i) grant any proxy, consent or other authority to vote with respect to the election of directors other than to the named proxies included in the Company’s proxy card for an annual meeting;
(j) engage in, or offer to or agree to engage in, directly or indirectly, any transaction (including through swap or hedging transactions or otherwise) that (i) reduces in any material respect the economic risk of ownership of any Company Shares owned by it or the other Restricted Persons or (ii) decouples the economic risk of ownership from the underlying Voting Securities owned by it or the other Restricted Persons;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction with respect to any security) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Voting Securities;
(l) either alone or in concert with others, directly or indirectly, make any tender offer, exchange offer or be a party to any merger, consolidation, acquisition, business combination, purchase of a division, purchase of substantially all of the assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company or any of its subsidiaries or its or their respective securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Restricted Persons or their Representatives from tendering shares, receiving payment for shares or otherwise participating in any such transaction initiated by a Third Party on the same basis as other stockholders of the Company or from participating in any such transaction that has been approved by the Board);
(m) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 8 other than to enforce the provisions of this Agreement and to defend (and/or assert counterclaims in) any litigation in which any Restricted Person is a defendant;
(n) make any request for stock list materials or other books and records of the Company under Section 2-512 of the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(o) make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) in support of any solicitation described in clauses (a), (b), (c) or (m) above;
(p) publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillparagraph 8; or
(jq) announce an intention make any request or submit any proposal to doamend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal. Notwithstanding anything to enter into any arrangement the contrary in this Agreement, nothing in this paragraph 8 shall prohibit or understanding restrict the Investors from: (i) communicating privately with others (whether written the Board or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted Company’s officers regarding any matter in a manner that does not otherwise violate this Section 8; (ii) taking any action necessary to comply with any law, rule or prohibited under clauses (a) through (j) of this Standstillregulation or any action required by any governmental or regulatory authority or stock exchange that has, or take may have, jurisdiction over the Investors or any action of their respective Affiliates in a manner that might result does not otherwise violate this paragraph 8; or (iii) communicating with its investors in the Company having quarterly or annual letters provided such communications are subject to make a public announcement regarding standard confidentiality obligations. The Investors acknowledge and agree that they shall be liable for any breach by their respective Affiliates or Representatives of any of the matters referred to in clauses (a) through (j) terms of this StandstillAgreement applicable to such Representatives. In addition, or otherwise intentionally takethe Company agrees to provide the Investors, or solicitupon the Investors’ reasonable request, or cause or encourage others to take, any action inconsistent with the foregoingsame degree, type and frequency of access to the Board and members of the Company’s senior management that is customarily provided to other stockholders with similarly sized shareholdings in the Company.
Appears in 2 contracts
Sources: Letter Agreement (PHH Corp), Letter Agreement (EJF Capital LLC)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Term the Investor and its Affiliates (collectively, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe “Standstill Parties”) shall not (and the Investor shall cause its Affiliates not to), unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardBoard of Directors (or any committee thereof) of the Company, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone more than one percent (1%) of any class or in concert with others, by purchase, tender offer, exchange offer, through the acquisition series of any equity or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting debt securities of the Company or any Subsidiaryof its subsidiaries (whether by purchase, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companybusiness combination, merger, consolidation, share exchange, joint venture or otherwise);
(b) make, solicit proxies or consents or become a “participant” in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents with respect to vote, whether subject securities of the Company or initiate any stockholder proposal with respect to or exempt from the proxy rules, or Company;
(c) seek to advise, encourage control or influence the management, Board of Directors or policies of the Company or any of its subsidiaries, or take action for the purpose of convening a stockholders meeting of the Company, other than in any manner whatsoever any person or entity the ordinary course of business with respect to (i) the voting Collaboration Agreement or (ii) any other commercial agreement between the Investor or an Affiliate of the Investor and the Company or any voting of its Affiliates;
(d) make any proposal or any public announcement (including, for the avoidance of doubt, indirectly by means of communication with the press or media) relating to a tender or exchange offer for securities of the Company or any Subsidiaryof its subsidiaries or relating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation, restructuring, recapitalization, or similar transaction involving the Company or its subsidiaries, or take any action that might require the Company to make a public announcement regarding any of the foregoing;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(de) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act (other than with respect to any the Investor’s Affiliates) for the purpose of acquiring, holding, voting or Disposing of securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assetsits subsidiaries or taking any other actions restricted or prohibited under clauses (a) through (d) of this Section 2.1, tangible and intangible, of the Company or take any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;steps in connection therewith; or
(f) arrangeenter into any discussions, negotiations, arrangements or in understandings with any way participate, directly or indirectly, in any financing for Third Party (other than with the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gInvestor’s Affiliates) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (je) of this StandstillSection 2.1. Nothing in this Agreement shall restrict the Investor or any of its representatives from (1)(a) from the date of this Agreement until June 30, 2016, making a request directly to the Board of Directors of the Company for written consent to submit a proposal regarding a possible business combination involving the Company and the Investor or any of their respective Affiliates (a “Transaction”) directly to the Board of Directors of the Company on a confidential basis, which request shall be considered in good faith (provided that if the Company believes that the Investor has made a confidential proposal not meeting the requirements of clause (a), the Company will provide the Investor notice of such violation and the Investor shall have the opportunity to withdraw or otherwise negate such proposal to ensure compliance with the provisions of this Section 2.1), or take any action that might result in (b) following June 30, 2016, making a proposal regarding a possible Transaction directly to the CEO or Board of Directors of the Company having on a confidential basis, (2) acquiring or offering to make a public announcement regarding acquire, seeking, proposing or agreeing to acquire any Third Party that owns any securities or assets of the matters referred to Company or (3) acquiring any securities of the Company in clauses (a) through (j) connection with any mutual fund, pension plan or employee benefit plan managed on behalf of this Standstill, employees or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with former employees of the foregoingCompany.
Appears in 2 contracts
Sources: Investor Agreement (TESARO, Inc.), Stock Purchase Agreement (TESARO, Inc.)
Standstill. Executive The Receiving Company agrees that for a period of 18 commencing on the date hereof and terminating on the date that is eighteen months from the date of Executive’s termination of employment for any reasonhereof, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its Restricted Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardCompany, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any more than two percent (2%) of the voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any more than two percent (2%) of the voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits subsidiaries;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiaryof its subsidiaries;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiariesany of its subsidiaries;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any material portion of the assets, tangible and or intangible, of the Company or any Subsidiary of its subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any material portion of the assets of the Company or any Subsidiaryof its subsidiaries, except for such assets as are then being offered for sale by the Company or any of its subsidiaries, including those offered in the ordinary course of business;
(fe) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its subsidiaries which are prohibited by clauses (a) or (d) of this Section 5, except for such assets as are then being offered for sale by the Company or any of its subsidiaries;
(gf) otherwise actotherwise, alone or in concert with others, to seek to propose to the Company or any Subsidiary of its affiliates or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, restructuring or recapitalization or other transaction involving with the Company or any Subsidiary;
(h) of its subsidiaries or seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company or any Subsidiary, of its subsidiaries or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose any person as a director who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryof its subsidiaries; provided that the foregoing clause (f) shall not be construed to restrict the Receiving Company from taking (or refraining from taking) any action in the ordinary course of its commercial relationship with the Company under the Commercial Agreements or otherwise;
(ig) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillSection 5; or
(jh) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (jg) of this StandstillSection 5; provided that, or take any action that might result in notwithstanding anything to the Company having to make a public announcement regarding any of the matters referred to contrary in clauses (a) through (jh) of this StandstillSection 5, if (1) a third party or group (A) publicly announces its intention to commence or commences a tender or exchange offer for at least 20% of the outstanding capital stock of the Company or (B) otherwise acquires at least 15% of the outstanding capital stock of the Company, (2) a third party publicly announces or commences a proxy contest with respect to the election of any directors of the Company in support of the third party’s proposal or offer relating to the foregoing, or otherwise intentionally take(3) the Company enters into an acquisition or business combination (or an agreement related thereto) in which (A) the security holders of the Company would not own a majority of the surviving entity, (B) the Company is selling all or substantially all of the Company’s assets or (C) any person or group of persons would acquire, directly or indirectly, (I) beneficial ownership of (x) 50% or more of the Company’s outstanding capital stock, (y) securities convertible into more than 50% of the Company’s outstanding capital stock or (z) any options, warrants or other rights to acquire more than 50% of the Company’s outstanding capital stock, or solicit(II) control of the Company (within the meaning of Rule 405 under the Securities Act of 1933), or cause or encourage others then the Receiving Company shall be entitled to take, take any action inconsistent with of the foregoingactions set forth in clauses (a) through (h) of this Section 5.
Appears in 2 contracts
Sources: Confidentiality Agreement (Vital Images Inc), Confidentiality Agreement (Magenta Corp)
Standstill. Executive During the period commencing on the date hereof and ending on the Standstill Termination Date, without the prior consent of the Company, each Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates will (and each Investor will cause its Affiliates to not), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquireother than the acquisition of additional shares of Common Stock by (i) the Warrant Holders pursuant to the the Warrant Agreements, (ii) Gavilan pursuant to any right of first offer under the Joint Development Agreement or (iii) the Warrant Holders or Gavilan pursuant to the exercise of Rights associated with the Common Stock owned by the Investors or their respective Affiliates, acquire (or propose to acquire, solicit an offer to sell or agree to acquire), directly of record or indirectly, alone or in concert with othersbeneficially, by purchasepurchase or otherwise, any of the Company Group’s corporate loans, debt securities, Voting Securities, other Company Group securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the Voting Securities or other Company Group securities of any member of the Company Group or all or substantially all of the assets of any member of the Company Group;
(b) (i) call a special meeting of the holders of Voting Securities of any member of the Company Group including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group, (iv) solicit consents from securityholders or otherwise act or seek to act by written consent with respect to the Company Group, (v) conduct a referendum of securityholders of any member of the Company Group or (vi) make a request for any securityholder list or other Company Group books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
(c) make any statement or proposal to the Board of any member of the Company Group regarding, or make any public announcement, proposal or offer (including without limitation any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including without limitation, for the avoidance of doubt, indirectly by means of communication with the press or media):
(i) any acquisition of any of the securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the securities or all or substantially all of the assets of any member of the Company Group;
(ii) any business combination, merger, tender offer, exchange offer, through similar transaction or other extraordinary transaction involving any member of the Company Group;
(iii) any restructuring, recapitalization, liquidation or similar transaction involving any member of the Company Group;
(iv) any proposal to seek representation on the Board of any member of the Company Group or otherwise seek to control or influence the management, the Board or policies of any member of the Company Group, including without limitation (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or other actions that may impede or facilitate the acquisition or of control of another person or entityany member of the Company Group by any Person, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiary, other than the acquisition in the aggregate securities exchange; or (F) causing a class of less than one-half of one percent of the outstanding voting equity securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules Company to become eligible for termination of the Securities and Exchange Commission promulgated registration pursuant to Section 14 12(g)(4) of the Exchange Act;
(v) any request or proposal to waive, terminate or amend the provisions of proxies this Agreement if such request or consents to vote, whether subject to proposal would require the Investor or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities member of the Company or any SubsidiaryGroup to make a public announcement;
(cvi) initiateany proposal, propose arrangement or “solicit” (as such term other statement that is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate inconsistent with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation terms of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;this Agreement, including without limitation this Section 2.1; or
(d) form[reserved]
(e) knowingly instigate, join encourage or assist any way participate in third party (including without limitation forming a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oralsuch third party) to do, or to financeenter into any discussions or agreements with any third party with respect to, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses set forth in Section 2.1(c); or
(af) through (j) of this Standstill, or take any action that might result in which would require any member of the Company having Group to make a public announcement regarding any of the matters referred to actions set forth in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 2.1(c).
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Sanchez Energy Corp)
Standstill. Executive agrees Each of CD&R Fund and the Purchaser Parties agree that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Company Board, acting by resolution approved by a majority of all members of CD&R Fund and the BoardPurchaser Parties shall not, directly or knowingly indirectly, and shall use reasonable best efforts to cause their respective Affiliates not to (either individually, or in concert with any manner other Person, or as a “group” (as such term is used in Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Exchange Act)):
(a1) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rightsrights to acquire any equity securities of the Company or any of its Affiliates, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding (1) any issuance by the Company of shares of Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations and (2) the use of cash dividends received by the Purchaser Parties on the Preferred Stock to acquire shares of Common Stock in open market purchases (but only to the extent of such cash dividends paid by the Company on the Preferred Stock), to the extent permitted by applicable Law);
(2) other than to effectuate the nomination and election of the Purchaser Designees pursuant to Section 4.10, make or in any way participate or engage in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any Subsidiaryof its Subsidiaries, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or other than with respect to the Purchaser Designees, seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(b3) makemake any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets of the Company and its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether public or otherwise) to effect or participate in(except as a holder of Common Stock or Preferred Stock) in a merger, directly consolidation, division, acquisition or indirectlyexchange of substantially all assets or equity, alone change of control transaction, recapitalization, restructuring, liquidation or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of similar transaction involving the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e5) acquireexcluding Purchaser Designees, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose control or influence, in any manner, management or the Company Board or any of its Subsidiaries;
(6) make any public proposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 4.13(b);
(9) enter into any discussions, negotiations, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any Subsidiary of its representatives, directly or indirectly, to amend or waive any provision of their respective stockholders or make any public statement with respect this Section 4.13(b), provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any Subsidiary;such request is made in a manner that does not require public disclosure thereof by any Person; or
(h11) seekcontest the validity of this Section 4.13(b) or make, alone initiate, take or participate in concert with othersany demand, to control, change action (legal or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iotherwise) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 4.13(b); provided, however, that nothing in this Section 4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.12 4.13(a) and the other Transaction Documents) or seek permission Transfer (subject to Section 4.9 and the other Transaction Documents) their shares of Preferred Stock or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this StandstillCommon Stock, or otherwise intentionally takeexercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (2) the preemptive rights of any Purchaser Party pursuant to Section 4.11, or solicit(3) the ability of any Purchaser Designee to act in his or her capacity as a member of the Company Board, including, but not limited to, his or cause her ability to vote or encourage others to take, any action inconsistent with the foregoingotherwise exercise his or her fiduciary duties.
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Beacon Roofing Supply Inc)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership in excess of 12% of the acquisition outstanding shares of Common Stock (based on the latest annual or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent 15(d) of the outstanding voting securities of the CompanyExchange Act);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of any voting securities of the Company or any Subsidiarythis Agreement);
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the SubsidiariesShareholder Group or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” in support of all of the nominees of the Board at any stockholder meeting;
(e) acquirecall or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, offer encourage or assist any other person to acquire initiate or agree to acquirepursue such a proposal or request) or otherwise acting alone, directly or indirectly, alone or in concert with others, by purchase, exchange seek to control or otherwise, (i) any influence the governance or policies of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany;
(f) arrangepublicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any way participatemanner that would require public disclosure by any of the members of the Shareholder Group or their respective Affiliates or Associates) to obtain any waiver, directly consent under, or indirectly, in any financing for the purchase amendment of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets provision of the Company or any Subsidiarythis Agreement;
(g) otherwise act, alone or in concert with others, to seek to propose to disparage the Company or any Subsidiary member of the Board or any management of their respective stockholders the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or make any public statement with respect otherwise, or to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization communications that are required by an applicable legal obligation or other transaction involving the Company or any Subsidiaryare subject to contractual provisions providing for confidential disclosure;
(h) seekengage in any short sale or any purchase, alone sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in concert with others, to control, change the market price or influence the management, the Board or policies value of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany’s securities;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Sources: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Telecommunication Systems Inc /Fa/)
Standstill. Executive Each member of the Shareholder Group agrees that for a period during the Standstill Period he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for respective Affiliates, Associates and agents and any reason, neither Executive nor any of other persons acting on his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its behalf not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with others, acquire by purchase, tender offer, exchange offer, through the acquisition agreement or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company business combination or any Subsidiary, other than the acquisition in the aggregate manner beneficial ownership of less than one-half of one percent of the outstanding voting any securities of the Company, if after completion of such acquisition or proposed acquisition, the members of the Shareholder Group, in the aggregate, would beneficially own more than ten percent (10%) of the outstanding shares of Common Stock (based on the latest annual, quarterly or other report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), excluding the acquisition of equity-based compensation pursuant to Section 11 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than (i) with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement), (ii) to the extent such a group may be deemed to result with the Company any of its Affiliates as a result of this Agreement or (iii) a voting agreement entered into pursuant to a Sale Transaction (as defined below) which has been approved by a majority of the SubsidiariesBoard;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act, in each case, to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (fother than the Shareholder Group and their Affiliates) arrangewould beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any way participatetransferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been publicly announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇, in his capacity as a shareholder of the Company, to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of any intent, consolidationpurpose, saleplan or proposal to obtain any waiver, tender offeror consent under, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the Company, or members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise seek, alone or in concert with others, election or appointment to or representation onotherwise, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) demand or make a request for inspection of the Company’s records under the Georgia Business Corporation Code;
(k) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jl) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇▇ from engaging in any lawful act in his capacity as a director of the Company that is either approved by the Board or required for ▇▇▇▇▇▇▇ to comply with his fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the first-year anniversary hereof (such period, neither Executive nor any of his affiliates or persons or entities the “Restricted Period”), with respect to the Company, each Blackwells Party shall not, and shall cause its Affiliates and their respective principals, directors, members, general partners, officers, employees, consultants and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the U.S. Securities and Exchange Commission promulgated pursuant (the “SEC”), but without regard to Section 14 of the Exchange Act) exclusion set forth in Rule 14a-1(l)(2)(iv)), involving the Company, of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents consents;
(b) knowingly encourage, advise or matters presented influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, (i) with respect to the Companyvoting or the giving or withholding of any proxy, consent or other authority to vote involving the Company or the taking of any other action with respect to such Person’s Voting Securities or its Subsidiaries’ stockholders;(ii) in conducting any type of referendum, binding or non-binding, involving the Company (in each case, other than such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(dc) form, join or participate in any way participate in a any “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any voting securities Voting Securities, other than solely with other Affiliates of the Company Blackwells with respect to Voting Securities now or the Subsidiaries;hereafter owned by them;
(ed) acquire, offer to acquire or offer, seek or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, (i) or direct any third party in the acquisition of, any Voting Securities or assets of the assetsCompany, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants rights or options to acquire any Voting Securities or assets of the Company (other than solely through the exercise of Voting Securities held by such Blackwells Party prior to the date of this Agreement and (i) identified by such Blackwells Party in its public filings with the SEC prior to the date of this Agreement or (ii) identified by such Blackwells Party in its public filings made with the SEC on the date of this Agreement, to the extent such Voting Securities were specified in drafts of such filings provided by such Blackwells Party to the Company on the date of this Agreement prior to entry into this Agreement);
(e) sell, offer or agree to sell all or substantially all voting rights decoupled from the underlying Voting Securities held by any Blackwells Party or any Subsidiary;of its Affiliates, directly or indirectly, through swap or hedging transactions or otherwise;
(f) arrangemake, or in any way participateparticipate with any other Person (other than (i) the voting of Voting Securities held by any Blackwells Party prior to the date of this Agreement and identified by such Blackwells Party in its public filings with the SEC prior to the date of this Agreement and (ii) the receipt of consideration on the same terms as other holders of Company securities), directly or indirectly, in any, or any financing for the purchase of any voting securities proposal that would reasonably be expected to result in any, tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or securities convertible or exchangeable into or exercisable for any voting securities or assets of similar transaction involving the Company or its subsidiaries or its or their securities or assets; or make, directly or indirectly, any Subsidiary;
(g) otherwise actproposal, either alone or in concert with others, to seek to propose to the Company or the Board that would reasonably be expected to require a public announcement regarding any Subsidiary such transaction;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of their respective stockholders or make any public statement Blackwells, with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or other transaction involving the Company or any Subsidiary;hereafter owned by them;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise (A) seek, alone or in concert with others, election or appointment to to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, the Board (B) seek, alone or in concert with others, the removal of any member of the Board, or propose any matter to be voted upon by the stockholders (C) conduct a referendum of the Company or any Subsidiary;shareholders;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise) for consideration by the Company’s shareholders;
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to amendbooks and records;
(k) institute, waive solicit, assist or terminate join any provision litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 4; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation against the Company to enforce the provisions of this Standstill or seek permission to or make any public announcement Agreement, (ii) making counterclaims with respect to any provision proceeding initiated by, or on behalf of, the Company against a Restricted Person, or bringing a responsive independent action against the Company should counterclaims be deemed insufficient to defend such Blackwells Party’s interests, (iii) responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (each, a “Legal Requirement”) in connection with any legal proceeding (the “Legal Proceeding”) if such Legal Proceeding has not been initiated by, or on behalf of, or at the suggestion of, the Blackwells Parties; provided, further, that in the event any of the StandstillBlackwells Parties or any of the Blackwells Representatives (as such term is defined below) receives any Legal Requirement, such Blackwells Parties or Blackwells Representatives shall give prompt written notice of such Legal Requirement to the Company; orprovided, however, that this clause (k) shall not require any Blackwells Party to opt out of any class action lawsuits against the Company not initiated in violation of this clause (k) (“Class Actions”) and to which such Blackwells Party is a party solely as a result of the Blackwells Parties’ ownership of Voting Securities during the class period applicable to such Class Actions;
(jl) announce an intention to dopublicly disclose any intention, plan or to arrangement inconsistent with any provisions of this paragraph 4;
(m) enter into any arrangement negotiations, agreements or understanding understandings with others (whether written or oral) any third party to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might any Blackwells Party is prohibited from taking pursuant to this paragraph 4; or
(n) make any request or submit any proposal to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, such request or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingproposal.
Appears in 2 contracts
Sources: Letter Agreement (Blackwells Capital LLC), Letter Agreement (Supervalu Inc)
Standstill. Executive agrees that for a period Except as otherwise provided in this Agreement, without the prior written consent of 18 months from the date of Executive’s termination of employment for any reasonTrustees (or following the Distribution Time, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board), acting the Stockholders and the Stockholder Designees shall not, and shall cause their Affiliates and controlled Associates not to, directly or indirectly (in each case, except as permitted by resolution approved this Agreement):
(i) other than pursuant to Sections 1(a) and 1(b) of this Agreement, nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors are to be elected; (ii) initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(b) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire or otherwise beneficially own (except by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardTrust or TPL Corp generally on a pro rata basis), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining a group, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company Trust or TPL Corp (other than through a broad-based market basket or index) or any Subsidiaryvoting rights decoupled from the underlying voting securities which would result in (i) Horizon having ownership or control of, or other beneficial ownership interest in, 23.5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Horizon Cap”), (ii) SoftVest having ownership or control of, or other beneficial ownership interest in, 4.0% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “SoftVest Cap”) or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Mission Cap”, and each of the Horizon Cap, the SoftVest Cap and the Mission Cap, individually, an “Ownership Cap”); provided, however, that, subject to Section 3(c), in the event that the Trust or TPL Corp (A) acquires through share purchases Sub-share Certificates or shares of the Common Stock or (B) undertakes a reverse share split, and any of such actions reduces the number of securities of the Trust or TPL Corp outstanding and thereby increases the proportionate number of Sub-share Certificates or shares of Common Stock that a Stockholder has ownership or control of, or otherwise beneficially owns, to a proportion of Sub-share Certificates or shares of the Common Stock that is equal to or greater than the applicable Ownership Cap for such Stockholder (such event, a “Share Reduction Event”), then such Stockholder shall not be deemed to have acquired or otherwise beneficially own an amount of Sub-share Certificates or shares of the Common Stock that is greater than the number of shares permitted pursuant to such Stockholder’s applicable Ownership Cap (such amount of securities in excess of a Stockholder’s Ownership Cap, the “Excess Shares”) in violation of this Section 3(b) as a result of such Share Reduction Event; provided, further, that such Stockholder shall divest its Excess Shares within a reasonable time period (but in any event, within 30 calendar days of becoming aware of such Share Reduction Event) so that such Stockholder no longer has ownership or control of, or otherwise holds a beneficial ownership interest in, such Excess Shares;
(c) sell or transfer shares of Common Stock, other than in open market sale transactions where the acquisition identity of the purchaser or transferee is not known and in underwritten widely dispersed public offerings, to any Third Party that (i) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of less than one-half of one percent 5.0% or more of the shares of Common Stock outstanding voting at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5.0% or more of the shares of Common Stock outstanding at such time, in each case, unless such Third Party is a passive investor that has not been a “reporting person” on a Schedule 13D and would not, in connection with purchasing or holding of securities of the CompanyTPL Corp, be required to file a Schedule 13D;
(bd) make(i) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person group or entity with respect to the voting agreement of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act kind with respect to any voting securities of the Company Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SubsidiariesSEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Distribution Time), or (ii) deposit any voting securities of the Trust or TPL Corp in any voting trust or subjecting any Trust or TPL Corp voting securities to any arrangement or agreement with respect to the voting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise actseek publicly, alone or in concert with others, to seek to propose amend any provision of the Governance Documents;
(f) demand an inspection of the Trust’s or TPL Corp’s books and records;
(g) make any (i) public or private (other than to the Company Trustees or any Subsidiary or any of their respective stockholders or make any public statement the Board) proposal with respect to or (ii) public statement or otherwise seek to encourage, advise or assist any mergerperson in so encouraging or advising with respect to, business combinationin each case: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, consolidation(B) any change in the capitalization, saledividend or share repurchase policy of TPL Corp, tender offer(C) any other change in the Trust’s or TPL Corp’s business, exchange offeroperations, restructuringstrategy, reorganizationmanagement, dissolutiongovernance, liquidationcorporate structure, recapitalization or other transaction involving affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any Subsidiarysecurities exchange or (F) causing a class of equity securities of TPL Corp to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) seekinitiate, make, effect, seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist any (i) Extraordinary Transaction, (ii) material acquisition of any assets or businesses of the Trust, TPL Corp or any of either the Trust’s or TPL Corp’s subsidiaries, (iii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Trust or TPL Corp or any of their subsidiaries, (iv) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Trust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in concert with others, to control, change the Trust or influence the management, the Board TPL Corp that would reasonably be expected to require a public announcement or policies of the Company or disclosure regarding any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiarysuch matter;
(i) make enter into any publicly disclosed proposalnegotiations, public statement, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;
(j) publicly make or disclose in any way advance publicly any request or proposal to that the Trust or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(jk) announce an intention take any action challenging the validity or enforceability of this Section 3 or this Agreement, unless TPL Corp is challenging the validity or enforceability of this Agreement; provided, however, that (i) nothing in this Agreement shall prevent the Stockholders or Stockholder Designees from making (A) any factual statement in response to doa Legal Requirement, (B) any communication to the Trust or TPL Corp, or (C) any private communication to enter into any arrangement investors or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do prospective investors in any of the actions restricted Stockholders or prohibited under clauses any of their Affiliates, provided that, in each case, such statement or communication (1) is based on publicly available information; (2) is not reasonably expected to be required to be publicly disclosed by any person and is understood by all parties to be confidential communication; and (3) is not made with an intent to circumvent any of the restrictions listed in paragraphs (a) through (jk) of this StandstillSection 3 or Section 4; and (ii) the restrictions in this Section 3 shall not restrict the Stockholders or Stockholder Designees from tendering shares, receiving payment for shares or take otherwise participating in any action that might result in such transaction on the Company having to make a public announcement regarding any same basis as the other stockholders of the matters referred Trust or TPL Corp or from participating in any such transaction that has been approved by the Trustees or the Board, as applicable, subject to in clauses (a) through (j) the other terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, Agreement. Nothing in this Agreement shall limit the exercise in good faith by any action inconsistent with the foregoing.Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 2 contracts
Sources: Stockholders' Agreement (SoftVest, LP), Stockholders Agreement (Texas Pacific Land Trust)
Standstill. Executive agrees that During the term of his employment and for a period of 18 six months from after the date of the Executive’s termination of employment for any reasonis terminated, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone indirectly or in concert with othersany other person, engage in any of the following:
(i) purchase, offer to purchase, or agree to purchase or otherwise acquire, by means of a purchase, tender offer, or exchange offer, through the acquisition business combination or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants other manner (including rights or options to acquireacquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable forfor Common Stock of the Company, that would result in the Executive, the Executive’s affiliates, and the members of any “group” of persons with which the Executive or his affiliates are acting in concert beneficially owning, in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting securities power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) other than in his capacity as an officer or director of the Company, seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Subsidiaryof its affiliates, other than including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the acquisition in the aggregate vote of less than one-half any holder of one percent of the outstanding voting securities of the Company;; or
(biii) makebe employed by any person (other than NorthStar) that, directly or through its affiliates, engages in any way participate inof the foregoing. Notwithstanding anything in this Section 7(d) to the contrary, no action described above taken by NorthStar (whether directly or indirectly, alone voluntarily or involuntarily) shall be considered to be a violation of this Section 7(d) by Executive. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or other awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in concert connection with others, any “solicitation” (or as such term is used in the proxy rules a result of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity Executive’s employment with respect to the voting of any voting securities of the Company or any Subsidiary;
(cservice on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) initiate, propose or above such that the Company would be considered to be in “solicitplay” (as such term is used in the proxy rules through no act of the Securities and Exchange Commission) stockholders of Executive, the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented Executive will no longer be subject to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning limitations of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSections 7(d).
Appears in 2 contracts
Sources: Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. Executive agrees that for a period of 18 12 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Sources: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, Standstill Period and unless specifically invited in writing otherwise approved by the BoardBoard of Directors (other than the Series B Designees), acting by resolution approved by a majority each Holder will not, and will cause each of all members of the Boardits Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition by joining a partnership, limited partnership, syndicate or control of another person or entity, other 13D Group or otherwise, (A) Beneficial Ownership of any direct Voting Securities, Derivative Securities or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting other securities of the Company or any Subsidiaryrights to acquire (whether currently, other than upon lapse of time, following the acquisition in satisfaction of any conditions, upon the aggregate occurrence of less than one-half of one percent any event or any combination of the outstanding voting foregoing) any Voting Securities, Derivative Securities or any other securities of the Company, other than (i) the acquisition of the shares of the Series B Stock pursuant to the Purchase Agreement, (ii) shares of Common Stock and other securities, if any, issuable upon the conversion of the Series B Stock, (iii) the acquisition of Voting Securities pursuant to Sections 4.2 and 4.3 hereof, (iv) the acquisition of Voting Securities and Derivative Securities as a result of any stock splits, stock dividends or other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities or Derivative Securities generally, but only to the extent any such securities are owned by a Holder, (v) in a transaction in which any Holder acquires an interest in an entity that owns shares of Voting Securities of the Company representing 2% or less of the Total Voting Power, or (vi) any acquisition of Voting Securities approved by a majority of the Directors (other than the Series B Designees) (clauses (i) through (vi) are referred to collectively as "Permitted Acquisitions") or (B) the Company or any of its Subsidiaries or all or substantially all of the assets of the Company or any of its Subsidiaries except pursuant to Section 4.2 hereof or as approved by a majority of the Directors (other than the Series B Designees);
(b) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " (as such term is used in within the proxy rules meaning of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 14a-1 under the Exchange Act) of proxies or consents relating to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity election of directors with respect to the voting of Company, or become a "participant" in any voting securities "election contest" (within the meaning of the Company or any SubsidiaryExchange Act) seeking to elect directors not nominated by the Board of Directors, other than nominees for director who are to be elected by the Holders of Series B Stock in accordance with the Certificate of Designations;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage induce or attempt to cause or encourage others induce any other Person to initiate any such stockholder proposal; proposal to seek election to or otherwise communicate with seek to place a representative on the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation Board of proxies or consents or matters presented Directors (except pursuant to the Company’s Certificate of Designations) or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the BoardBoard of Directors of the Company);
(d) in any manner, agree, attempt, seek or propose to deposit any matter to be voted upon by the stockholders Voting Securities, Derivative Securities or any other securities of the Company or any Subsidiaryrights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities, Derivative Securities or other securities of the Company in any voting trust or similar arrangement (other than any such voting trust or similar arrangement among two or more Holders);
(ie) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of announce any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, ; or
(f) form or make or disclose any request or proposal to amend, waive or terminate any provision join in the formation of this Standstill or seek permission to or make any public announcement a 13D Group with respect to any provision Voting Securities, other than any such "group" consisting exclusively of Holders and any Affiliates of the Standstill; orHolders;
(jg) announce an intention to doexcept as provided in Section 4.2, finance (or to enter into arrange financing for) any arrangement or understanding Person in connection with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing; provided, however, that nothing in this Section 3.1 shall (i) limit any rights of the Investors under each of the Purchase Agreement, Certificate of Designations, and Registration Rights Agreement, (ii) prohibit any individual who is serving as a Director, solely in his or prohibited under clauses her capacity as a Director, from (ax) through exercising his or her fiduciary duties, (jy) taking any action or making any statement at any meeting of this Standstillthe Board of Directors or of any committee thereof, or take (z) making any action that might result in statement or disclosure required under federal securities Laws or other applicable Law, (iii) restrict any disclosure or statements required to be made by any Investor under applicable Law, or (iv) limit the Company having to make a public announcement regarding any rights of the matters referred Investors pursuant to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 4.2 hereof.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Phillips Van Heusen Corp /De/), Investors' Rights Agreement (Phillips Van Heusen Corp /De/)
Standstill. Executive agrees that Without Buyer’s or Seller’s consent, as applicable, Seller and Buyer, respectively, shall not, and shall cause their respective Exchange Act Affiliates not to, for a period of 18 months two years from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
Agreement: (a) purchase or otherwise acquire, offer or propose to acquireoffer, solicit an offer to sell seek, propose, or agree to acquire, directly ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any (i) securities of the other Party or indirectlyany of its Exchange Act Affiliates, as applicable (a “Public Counterparty”), or (ii) direct or indirect rights or options to acquire any such securities described in Section 5.7(a)(i) or any securities convertible into any such securities described in Section 5.7(a)(i) (collectively, the securities described in Section 5.7(a)(i) and Section 5.7(a)(ii) are “Securities”); (b) seek or propose, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or to control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person the management, the board of directors or entity with respect to the voting of any voting securities policies of the Company or any Subsidiary;
Public Counterparty, including a proposal pursuant to Rule 14a-8; (c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangemake, or in any way participate, directly or indirectly, in any financing for “solicitation” of “proxies” (as such terms are used in the purchase proxy rules under the Exchange Act and the regulations thereunder) to vote, or seek to advise or influence any Person with respect to the voting of any voting securities or securities convertible or exchangeable into or exercisable for of a Public Counterparty; (d) make any voting securities or assets of the Company proposal or any Subsidiary;
(g) otherwise actstatement regarding any proposal, alone whether written or in concert with othersoral, to seek to propose to the Company board of directors of a Public Counterparty or any Subsidiary director or officer of a Public Counterparty or otherwise make any public announcement or proposal whatsoever with respect to any other transaction or proposed transaction between the Parties, any of a Public Counterparty’s security holders, or any of their respective stockholders Exchange Act Affiliates, including any acquisition, tender or make any public statement with respect to any exchange offer, merger, sale of assets or securities, or other business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
unless (i) make any publicly disclosed the Public Counterparty’s board of directors or its designated representatives have requested in advance the submission of such a proposal, public statement(ii) such proposal is directed to the Public Counterparty’s board of directors or its designated representatives, public inquiry or public disclosure of any intention, plan, or arrangement and (whether written or oraliii) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to such proposal is approved in advance by the Public Counterparty’s board of directors; or (e) providing financing (including guarantees), in whole or in part, to any provision of the Standstill; or
(j) announce an intention Person with respect to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (aa)-(d) through (j) above of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5.7.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spruce Power Holding Corp), Asset Purchase Agreement (New Jersey Resources Corp)
Standstill. Executive agrees that for For a period of 18 months from commencing on the date hereof and ending on the earlier of Executive(i) thirty-six (36) months following the effective date of the Merger and (ii) the date upon which the Shareholder no longer has the right to nominate at least one (1) director to the Company’s termination board of employment for directors (the “Board”) pursuant to the Governance Agreement, the Shareholder shall not, without the prior written consent of the Company, directly or indirectly:
a. acquire, offer to acquire, or agree to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (“Exchange Act”)), by purchase or otherwise, any reasonadditional shares of Common Stock, neither Executive nor or any rights or options to acquire any such securities or any securities convertible into such securities; provided that, in the event that at any time, whether due to an increase in the total outstanding shares of his affiliates or persons or entities acting at his direction or with his assistance willCommon Stock, unless specifically invited in writing a sale of shares of Common Stock by the Board, acting by resolution approved by a majority of all members Shareholder or otherwise (made in compliance with the provisions of the Boardlock-up agreement dated as of the date hereof with the Shareholder, as same may be amended from time to time (the “Lock-Up Agreement”), the Shareholder beneficially owns, directly or indirectly, in Common Stock representing less than the Shareholder Maximum Ownership Percentage, the Shareholder may acquire additional shares of Common Stock or rights or options to acquire any manner such securities or any securities convertible into such securities; provided, further, that the Shareholder’s ownership percentage will not exceed the Shareholder Maximum Ownership Percentage;
b. call or seek to call any meeting of the stockholders of the Company;
c. submit, or participate with others that submit, any stockholder proposals for the vote or consent (the obligations collectively, “vote”) of stockholders (whether pursuant to this Section 13 being referred to as, Rule 14a-8 under the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entityExchange Act, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities ) of the Company or any Subsidiary, other than proposal for consideration by the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(b) d. solicit “proxies” or make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Commission) for proxies for any stockholder proposals of the Company or nominations of candidates for election as directors or trustees of the Company;
e. form or join in a partnership, syndicate or other group, including, without limitations, a “group” as defined under Section 14 13(d) of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the Shareholder Shares, or deposit any Shareholder Shares in a voting of any voting securities trust, arrangement or agreement, except for such actions that may be permitted under the Lock-Up Agreement;
f. explicitly or implicitly, publicly or privately: (i) encourage, recommend, advise, finance or urge others to put forward stockholder proposals of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders nominations with respect to directors/trustees of the Company or enter into any Subsidiary arrangements with any other person in connection with any of the foregoing as they relate to the Company; (ii) indicate support or approval for the approval of any stockholder proposals whether made pursuant or nominations relating to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause Company that are not otherwise approved by the Board in accordance with the Articles; (iii) solicit or encourage others to initiate vote against any such stockholder proposalmatter recommended by the Board in accordance with the Articles; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(div) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, act alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options others to acquire any assets of the Company or any Subsidiary;
(f) arrangeseek control of, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, effect a change or influence the managementto, the Board management or policies of the Company or any SubsidiaryCompany, or unless otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, approved by the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent in accordance with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillArticles; or
(j) announce an intention g. take or seek to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage seek to cause or solicit others to take, take any action inconsistent with any of the foregoing as they relate to the Company. Notwithstanding the foregoing, this Agreement will not be construed to preclude, prohibit, restrict or otherwise require the Shareholder to take any actions that are permitted or contemplated by the Governance Agreement or the Company’s Articles.
Appears in 2 contracts
Sources: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp), Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates (a) Except as otherwise expressly provided in this Agreement or persons or entities acting at his direction or with his assistance will, unless as specifically invited approved in writing by 66-2/3% of the Board, acting by resolution approved by a majority of all members of the Board, directly for a period of three (3) years from the date of this Agreement, neither London Bridge, nor any of its Affiliates or indirectlyAssociates, in nor any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireGroup which London Bridge Controls shall, directly or indirectly, alone or in concert with others, :
(i) by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, acquire, agree to acquire or offer to acquire Beneficial Ownership of, or any direct or indirect beneficial interest in Liens with respect to, any voting securities Voting Securities or direct or indirect rights, warrants rights or options to Beneficially Own Voting Securities (including any voting trust certificates representing such securities);
(ii) enter into, propose to enter into, solicit or support any Buyout Transaction or Third Party Offer, or purchase, acquire or propose to purchase, acquire, solicit or securities convertible into support the purchase or exchangeable for, acquisition of any voting securities portion of the business or assets of the Company or any Subsidiaryof its Subsidiaries by London Bridge or by any of its Affiliates or Associates or by any other Person;
(iii) form, join or in any way participate in a Group (other than a Group that may be formed in the future consisting solely of London Bridge and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to Voting Securities other than the acquisition Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than the Company with respect to any Voting Securities, become a "participant" in an "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A under the aggregate of less than one-half of one percent Exchange Act) relating to the Board, or otherwise attempt to acquire or alter Control of the outstanding voting securities business or affairs of the Company;
(v) deposit any Voting Securities in a voting trust or enter into any voting agreement or arrangement with respect thereto (other than this Agreement) which would entitle any Person to Control more than 10% of the Total Voting Power of the Company;
(vi) publicly propose to do or permit any of the foregoing, publicly propose to revise any of the standstill provisions of this Agreement, or otherwise take any action challenging the validity or enforceability of the foregoing or which would be inconsistent with the foregoing; or
(vii) assist, advise, encourage, provide funds for, negotiate or otherwise participate with or support any Person with respect to, or otherwise seek to do, any of the foregoing or, except as set forth in Section 2.3 below, participate, assist, advise, encourage, provide funds for or otherwise support any Third Party Offer.
(b) make, Nothing in this Agreement shall (i) prohibit or in restrict London Bridge from responding to any way participate in, directly or indirectly, alone or in concert with others, inquiries from any “solicitation” (Other Holders as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity London Bridge's intention with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (Voting Securities Beneficially Owned by it so long as such term response is used consistent with the terms of this Agreement; (ii) prohibit London Bridge from Beneficially Owning Voting Securities issued as dividends or distributions in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actrespect of, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchaseissued upon conversion, exchange or otherwiseexercise of, securities which London Bridge is permitted to Beneficially Own under this Agreement; (iiii) prohibit any employee or agent of the assets, tangible and intangible, London Bridge from purchasing or otherwise acquiring Voting Securities so long as he or she is not a member of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary a Group that includes London Bridge or any of their respective stockholders its Affiliates or make Associates or is not otherwise acting on behalf of London Bridge or any public statement of its Affiliates or Associates; or (iv) prohibit London Bridge from disclosing in accordance with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization its obligations (if any) under the federal securities laws or other transaction involving applicable law (if any) that the Company has become the subject of a Buyout Transaction or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingThird Party Offer.
Appears in 2 contracts
Sources: Governance Agreement (London Bridge Software Holdings PLC), Governance Agreement (Phoenix International LTD Inc)
Standstill. Executive (a) ▇▇▇▇ agrees that for a period of 18 months from the date of Executive’s termination this Agreement until the first anniversary of employment for any reasonthe date on which KLIM no longer has the right to nominate a KLIM Designee to the Board of Directors pursuant to Section 5.1, neither Executive nor any without the prior written approval of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all the disinterested members of the BoardBoard of Directors, KLIM shall not, directly or indirectly, in and shall cause its Affiliates (including any manner (the obligations pursuant to this Section 13 being referred to asPurchaser) not to, the “Standstill”):directly or indirectly:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersoffer to acquire, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct additional shares of Common Stock or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company, other than Conversion Shares issuable or issued upon conversion of the Notes in accordance with the terms thereof;
(bii) make, engage in, or in any way way, participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section Regulation 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity Person with respect to the voting of, any equity interests of the Company in favor of the election of any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee) or in opposition of any individual nominated or designated for appointment or election to the Board of Directors by the Company (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation);
(iii) nominate any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee);
(iv) deposit any equity securities in a voting trust or similar contract or agreement or subject any equity securities to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any equity securities (in each case, other than to the Company or a Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the Company by or on behalf of the Company);
(v) make any public announcement with respect to, enter, agree to enter, propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any Subsidiaryof its Subsidiaries, or purchase of a material portion of the assets, properties or equity securities of the Company, other than acquisitions of Conversion Shares pursuant to the Transaction Documents in accordance with the terms thereof;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dvi) form, join or in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act Act), or knowingly advise, assist or encourage, or enter into any agreement with, any other Person, in connection with any action prohibited by this Section 4.3(a);
(vii) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements, or arrangements with any other Persons in connection with the matters prohibited by Section 4.3(a);
(viii) make public disclosure inconsistent with the requirements of this Section 4.3(a), or take any action that would reasonably be expected to require the Company to make any public disclosure with respect to any voting securities of the Company or the Subsidiaries;matters set forth in this Section 4.3(a); or
(eix) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; orforegoing.
(jb) announce an intention to doNotwithstanding Section 4.3(a), or to enter into any arrangement or understanding with others the foregoing provisions of Section 4.3(a): (whether written or orali) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having shall not restrict KLIM’s ability to make a confidential proposal to the Board of Directors that is not required to be publicly disclosed under applicable law, (ii) shall not, and are not intended to restrict in any manner how KLIM or its Affiliates votes their Conversion Shares or exercises any rights under this Agreement or any other Transaction Document, and (ii) shall not, and are not intended to restrict in any manner KLIM or its Affiliates (A) from purchasing, holding or trading any Notes, (B) in their respective capacity as a lender of the Company or any of its Affiliates (including exercising, protecting, preserving or enforcing any rights, interests or remedies and/or taking any other actions, in each case in such capacity), or (C) from making any public announcement regarding or statement (each, a “Response”) in response to any public announcement, proposal, offer or solicitation made by any other Person, provided, that at least five (5) Business Days prior to making any such Response, KLIM or its Affiliates shall provide the Company with prior written notice of KLIM’s or its Affiliate’s intention to make the Response and a draft of such Response, and the Company shall have a reasonable opportunity to provide comments to the draft Response, which comments shall be considered by KLIM or its Affiliate (as applicable) in good faith if timely provided.
(c) Notwithstanding Section 4.3(a), the restrictions set forth in this Section 4.3 shall terminate and be of no further force and effect if: (i) the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving more than fifty percent (50%) of any class of the matters referred Company’s equity securities, or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance, or otherwise), (ii) any Person or group publicly announces or commences a tender or exchange offer to in clauses acquire more than fifty percent (a) through (j50%) of this Standstillany class of the Company’s equity securities, (iii) a change of a majority of the membership of the Board of Directors (excluding any change approved by a majority of the directors serving on Board of Directors prior to such change), or otherwise intentionally take, or solicit, or cause or encourage others to take, (iv) any action inconsistent with Event of Default under the foregoingNotes has occurred and is continuing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Douglas Elliman Inc.), Securities Purchase Agreement
Standstill. Executive Each Investor agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons Associates or entities acting at his direction or with his assistance Family Members will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates and Family Members not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, take any of the following actions or advise, recommend, request, encourage, solicit, influence or induce any other person to take any of the following actions, or announce any intention to take any of the following actions:
(a) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by purchasethe Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, tender offer, exchange offer, through as amended (the acquisition or control of another person or entity“Exchange Act”), or otherwise, or any direct notice of nomination or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireother business for consideration, or securities convertible into or exchangeable for, nominate any voting securities of candidate for election to the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(b) make, or in any way participate inengage, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject to or exempt from the proxy rules, induce or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of any voting securities stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any Subsidiaryvoting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(e) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any the voting securities stock of the Company (other than a “group” that consists solely of all or some of the Subsidiaries;
(e) acquire, offer persons parties to acquire this Agreement or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company their respective Affiliates or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryAssociates);
(f) arrange, or in deposit any way participate, directly or indirectly, in any financing for the purchase shares of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets stock of the Company in a voting trust or similar arrangement or subject any Subsidiaryshares of voting stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) otherwise act, alone vote for any nominee or in concert with others, to seek to propose nominees for election to the Company Board, other than those nominated or any Subsidiary or any supported by the Board not in violation of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryterms of this Agreement;
(h) seekexcept as specifically provided in Section 1 of this Agreement, alone seek to place a representative or in concert with othersother Affiliate, to control, change Associate or influence the management, nominee on the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(i) acquire or agree, offer, seek or propose to acquire, or propose any matter cause to be voted upon by acquired, ownership (including beneficial ownership) of any of the stockholders assets or business of the Company or any Subsidiaryrights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company; provided, however, nothing herein shall limit the ability of the Investors to disclose, publicly or otherwise, how it intends to vote with respect to any announced tender offer, exchange offer, merger, consolidation, business combination or other change-of-control transaction that is being submitted for the approval of shareholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(k) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(m) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(n) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Investors from: (A) communicating privately with the Board or the Chief Executive Officer of the Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3, or (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investors or any of their respective Affiliates or Associates, provided that a breach by Investor of this Agreement is not the cause of the applicable requirement. As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include persons who become Affiliates or public disclosure Associates of any intention, plan, or arrangement (whether written or oral) inconsistent with person subsequent to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision date of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement;
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. Executive During the period commencing on the date hereof and ending on the Standstill Termination Date, without the prior consent of the Company, each of the GSO Funds agrees that for a period none of 18 months from the date of Executive’s termination of employment for any reasonit, neither Executive GSO, nor any of his affiliates or persons or entities acting at his direction or with his assistance willtheir Affiliates, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquireeffect or seek, offer or propose to acquire, solicit an offer to sell effect:
(i) any acquisition (or agree proposal or agreement to acquire), directly of record or indirectly, alone or in concert with othersbeneficially, by purchasepurchase or otherwise, of any of the Common Stock, or rights or options to acquire interests in any of the Common Stock (or any other beneficial ownership thereof) of the Company (other than the acquisition of Underlying Shares by any of the GSO Funds pursuant to (x) the express terms of the Statement of Resolutions to satisfy dividends or distributions or upon redemption settled in Common Stock or (y) the exercise of any Warrant);
(ii) any business combination, merger, tender offer, exchange offersimilar transaction, through acquisition of all or substantially all of the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities assets of the Company or other extraordinary transaction involving any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent member of the outstanding voting securities of the CompanyCompany Group;
(biii) makeany proposal advanced publicly to seek any restructuring, recapitalization, liquidation, dissolution, exchange offer or in similar transaction involving any way participate in, directly or indirectly, alone or in concert with others, member of the Company Group;
(iv) any “solicitation” of “proxies” (as such term is terms are defined or used in the proxy rules of the Securities SEC) or consents to vote or consents to vote or otherwise with respect to any voting securities of any member of the Company Group, or make any communication exempted from the definition of “solicitation” by Rule 14a 1(1)(2)(iv) under the Exchange Act;
(v) other than pursuant to and Exchange Commission promulgated in accordance with the rights expressly granted to the holders of the Preferred Stock in Section 9(b) of the Statement of Resolutions, any proposal advanced publicly to seek representation on the Board of any member of the Company Group or otherwise publicly seek to control or influence the management, the Board or policies of any member of the Company Group, including, without limitation, (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or other actions that may impede or facilitate the acquisition of control of any member of the Company Group by any Person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 14 12(g)(4) of the Exchange Act;
(i) call a special meeting of proxies the holders of Voting Securities of any member of the Company Group, including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group that is elected by holders of Voting Securities, (iv) solicit consents from holders of Voting Securities or consents to vote, whether subject to or exempt from the proxy rules, otherwise act or seek to advise, encourage or influence in any manner whatsoever any person or entity act by written consent with respect to the voting Company Group, or (v) make a request for any list of any voting securities holders of Voting Securities or other Company Group books and records; except to appoint and elect up to two directors to the Board pursuant to and in accordance with the rights expressly granted to the holders of the Company or any SubsidiaryPreferred Stock in Section 9(b) of the Statement of Resolutions;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with any third party or knowingly instigate, encourage or assist any third party to do, or enter into any discussions or agreements with any third party, in each case, with respect to any voting securities of the Company or the Subsidiaries;
(e) acquireto, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, actions set forth in Section 2.1(a); provided that the inclusion of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary GSO or any of their respective stockholders its Affiliates in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) together solely with The Blackstone Group L.P. and/or its other Affiliates shall not constitute a breach or make violation of this Section 2.1(c); provided, further that such “group” does not take any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;action that is restricted by this Section 2.1.
(hd) seek, alone take any action which is reasonably likely to cause or in concert with others, to control, change or influence the managementrequire GSO, the Board GSO Funds or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having Group to make a public announcement regarding any of the types of matters referred set forth in this Section 2.1; provided that any public disclosure by GSO or any of its Affiliates on Schedule 13D, Schedule 13G or otherwise pursuant to in clauses Section 16 of the Exchange Act or by any “group” (a) through (jwithin the meaning of Section 13(d)(3) of the Exchange Act) of which GSO or any of its Affiliates are members with The Blackstone Group L.P. and/or its other Affiliates shall not constitute a breach or violation of this StandstillSection 2.1(d) if the action disclosed in such filings is otherwise permitted by this Section 2.1; or
(e) publicly disclose any intention, plan or otherwise intentionally take, or solicit, or cause or encourage others to take, any action arrangement inconsistent with the foregoingthis Section 2.1.
Appears in 2 contracts
Sources: Standstill and Voting Agreement, Standstill and Voting Agreement (Carrizo Oil & Gas Inc)
Standstill. Executive agrees that for a period ▇▇▇▇▇▇ shall not, and shall cause each other Person in the ▇▇▇▇▇▇ Group not to, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the BoardGovernance Committee, acting by resolution approved by alone or as part of a majority of all members of the Board, directly or indirectly, in any manner group: (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) acquire, propose, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of Meritage (other than securities owned beneficially by any Person in the Company ▇▇▇▇▇▇ Group) or any Subsidiaryof its subsidiaries or any material portion of the assets of Meritage or any of its subsidiaries or divisions, other than the acquisition in the aggregate provided however, that if ▇▇▇▇▇▇ ▇▇▇▇▇ shares that bring his beneficial ownership of less than one-half of one percent Voting Securities below 5% of the outstanding voting securities Voting Securities of Meritage, ▇▇▇▇▇▇ or any Person in the ▇▇▇▇▇▇ Group may reacquire Voting Securities from time to time provided that as a result of such acquisitions the aggregate beneficial ownership of Voting Securities by the ▇▇▇▇▇▇ Group does not increase and thereafter exceed 4.99% of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules outstanding Voting Securities of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposalMeritage; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangemake, or in any way participate, directly or indirectly, in any financing for “solicitation” of “proxies” (as such terms are used in the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets rules of the Company SEC) to vote or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company advise or influence any Subsidiary or any of their respective stockholders or make any public statement Person with respect to the voting of any mergersecurities of Meritage, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, otherwise seek to control, change control or influence the managementmanagement of Meritage or its Board of Directors by means of statements or communications with any party other than Meritage’s Chief Executive Officer, the Board or policies of the Company or any SubsidiaryChief Financial Officer, or otherwise seek, alone General Counsel or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination members of any candidate to, the its Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
Directors; (iiii) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to doto, or to enter into any arrangement or understanding with others (whether written or oral) to dosubmit a proposal for, or to finance, intentionally advise, enable, assist offer of (with or encourage others to do without conditions) any extraordinary transaction involving Meritage or any of the actions restricted its securities or prohibited under clauses (a) through (j) of this Standstillassets, or take any other action that might result reasonably be expected to force Meritage to make a public announcement regarding any of the matters of the type set forth in clauses (i) through (iii) of this Section 5(b); (iv) form, join, or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing clauses (i) through (iii) of this Section 5(b), (v) make or support in any fashion any shareholder proposal not supported by the Governance Committee or the Board of Directors of Meritage; (vi) call, or encourage any other Person to call, any special or annual meeting of shareholders of Meritage, (vii) cause Meritage’s directors, officers, employees, agents (including investment bankers), partners or Affiliates to, directly or indirectly, engage in negotiations with, provide any information to, induce or attempt to induce or give encouragement to, any Person, in furtherance of any change of control of Meritage (whether pursuant to a tender or exchange offer, a stock or asset sale or a merger, consolidation, amalgamation, plan or arrangement or any other form of transaction), or any transaction that would be inconsistent with or frustrate the purpose of this Agreement, (viii) execute any written consent in lieu of a meeting of shareholders of Meritage except a written consent solicited by or on behalf of the Governance Committee or the Board of Directors of Meritage or (ix) except with his, her or its own personal financial and tax advisors, discuss Meritage or its business affairs or prospects with financial analysts, bankers, investment bankers, fund managers, investors or any other Persons engaged in the Company having financial markets; provided, that nothing in this clause (ix) shall preclude ▇▇▇▇▇▇ from discussing such matters with such Persons as they relate to his historical roles with Meritage or in connection with capital raising activities for business ventures so long as any such discussions, activities or ventures are conducted by ▇▇▇▇▇▇ in compliance with this Agreement, the Settlement Agreement and his continuing obligations under Sections 8 and 9 of the Employment Agreement. In addition, ▇▇▇▇▇▇ agrees not to request Meritage to directly or indirectly amend or waive any provision of this Section 5(b), or to take any action designed to or which could reasonably be expected to require Meritage to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5(b).
Appears in 2 contracts
Sources: Cooperation Agreement (Meritage Homes CORP), Cooperation Agreement (Meritage Homes CORP)
Standstill. Executive The Shareholder hereby agrees that that, for a period of 18 months one year from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, the Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of its Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, publicly announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person Person, by joining a partnership, limited partnership, syndicate or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
"group" (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to Act) or otherwise, any voting equity securities of the Company Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire additional shares of Common Stock in open market or privately-negotiated transactions as long as the SubsidiariesShareholder and its Affiliates, collectively, shall not, as a result of such purchase or purchases, beneficially own in excess of 25% of the outstanding shares of Common Stock;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangemake, or in any way participate, directly or indirectly, in any financing "solicitation" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) of proxies or consents (whether or not relating to the election or removal of directors), seek to advise, encourage or influence any Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(iii) seek, propose, or make any public statement (whether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of any voting assets, sale or purchase of securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or securities convertible similar transactions of or exchangeable into or exercisable for any voting securities or assets of involving the Company or any Subsidiaryof its Affiliates or solicit or encourage any other Person to make any such public statement or proposal;
(giv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than 63 groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to propose control or influence or seek to influence the Company management, Board of Directors or any Subsidiary or any policies of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any SubsidiaryCompany;
(hviii) seek, alone or in concert with others, to control, change or influence the management, representation on the Board or policies of Directors of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board, or propose any matter to be voted upon by the stockholders Board of the Company or any SubsidiaryDirectors;
(iix) make any publicly disclosed proposal or enter into any discussion regarding any of the foregoing;
(x) publicly make any proposal, public statementstatement or inquiry, public inquiry or public disclosure of publicly disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or publicly make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Agreement or seek permission to the Certificate of Incorporation or make any public announcement with respect to any provision By-laws of the StandstillCompany; or
(jxi) announce an intention to do, or to enter into any arrangement arrangements, understandings or understanding with others agreements (whether written or oral) to dowith, or to finance, intentionally advise, enablefinance or assist, assist or encourage others to do any other Person in connection with any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillforegoing, or take make any action investment in or enter into any arrangement with, any other Person that might result engages, or offers or proposes to engage, in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Standstill. Executive Armistice agrees that for a period of 18 months from until the date of Executive’s termination of employment for any reasonTermination Date, neither Executive nor any of his affiliates or persons or entities it shall not, and shall cause its Affiliates and Associates and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Armistice Affiliates”) not to, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to as, prior express written invitation or authorization by the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, engage in or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant (the “SEC”), but without regard to Section 14 the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies proxies, consents or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity voting authorizations with respect to the voting election or removal of any voting securities directors of the Company or any Subsidiary;
(c) initiateother matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or assist any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate “participant” in any such stockholder proposal; solicitation of proxies, consents or otherwise communicate with voting authorizations from the Company’s stockholders;
(b) encourage, influence, induce or its Subsidiaries’ stockholders advise or others assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with the solicitation of proxies or consents or matters presented any matter submitted to the Company’s stockholders for their consideration and vote);
(c) form, join, encourage, influence, advise, act in concert with or its Subsidiaries’ stockholdersin any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Armistice Affiliates with respect to Voting Securities now or hereafter owned by them;
(d) form, join make or be the proponent of any way participate in a “group” within the meaning of Section 13(d)(3) of stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act with respect to any voting securities of the Company or the Subsidiariesotherwise);
(e) acquiremake any request for a stockholder list or for any other Company materials, offer to acquire books or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any records under Section 220 of the assetsDelaware General Corporation Law, tangible as amended, or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiaryrecords;
(f) arrangemake any statement or announcement that constitutes an ad hominem attack on, or in otherwise disparages or causes to be disparaged, the Company, any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise actCompany’s Affiliates, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders the Company’s past, present or make any public statement with respect to any mergerfuture employees, business combinationdirectors, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization managers or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillrepresentatives, or take any action that might would reasonably be expected to result in any such statement or announcement being publicly made;
(g) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action that Armistice is prohibited from taking pursuant to this Section 3;
(h) make any request or submit any proposal to amend or waive the Company having terms of this Agreement, in each case which would reasonably be expected to make result in a public announcement regarding of such request or proposal; or
(i) disclose any intention, plan, commitment or arrangement to do any of the matters referred to foregoing. Notwithstanding anything in clauses this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict Armistice from (ai) through communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (jii) communicating with stockholders of the Company and others in a manner that does not otherwise violate this StandstillSection 3 or Section 4(b), or otherwise intentionally take, or solicit, or cause or encourage others to take, (iii) taking any action inconsistent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over Armistice. Nothing in this Section 3 or elsewhere in this Agreement shall be deemed to, in any manner, restrict any director’s ability to act consistently with his or her fiduciary duties as a director of the foregoingCompany.
Appears in 2 contracts
Sources: Cooperation Agreement (Avalo Therapeutics, Inc.), Cooperation Agreement
Standstill. Executive agrees that (a) Subject to the terms and conditions of this Section 5.1, for a period of 18 months from following the date of Executive’s termination of employment for any reasonhereof, neither Executive the Investor nor any of his affiliates or persons or entities acting at his direction or with his assistance its Affiliates will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities prior approval of the Company;:
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(ei) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase, merger, take-over bid, business combination or otherwise, individually or acting jointly or in concert with any other Person (as determined in accordance with Section 1.9 of NI 62-104, hereinafter referred to as “Acting Jointly or in Concert”), any voting securities of the Company and/or Convertible Securities (a “Share Transaction”) if such Share Transaction would result in the Investor and its Affiliates having, directly or indirectly, beneficial ownership of, or control or direction over, more than 19.9% of an outstanding class of voting securities of the Company (calculated in accordance with Section 1.8 of NI 62-104);
(ii) directly or indirectly, make, or in any way participate in, any solicitation of proxies to vote, or encourage, seek to advise or influence any other Person (other than an Affiliate of the Investor) with respect to the voting of any voting securities of the Company (other than in respect of the voting securities of the Company held by the Investor pursuant to subsection (a)(i) of this Section 5.1 or Section 5.1(c));
(iii) otherwise act alone or in concert with others, by purchase, exchange or otherwise, (i) any of others to seek to control the assets, tangible and intangible, management of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or Company, other than through any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment Board Designee that may be elected to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iiv) make enter into any publicly disclosed proposaldiscussions, public statementarrangements, public inquiry understandings or public disclosure of any intentionagreements, plan, or arrangement (whether written or oral) inconsistent , with, or advise, finance, aid, assist or encourage any other Person with respect to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or ; or
(v) make any public announcement with respect to any provision the foregoing, except as may be required by applicable law, regulatory authorities or stock exchanges.
(b) The restrictions contained in Section 5.1(a) shall terminate immediately upon the earlier of (each a “Spring Event”):
(i) the date on which the Company or the Board announces an intention to agree or agrees with a Third Party to a merger, amalgamation, arrangement or similar transaction or the sale, directly or indirectly, of all or substantially all of the Standstillassets of the Company (collectively, a “Transaction”) which, if such Transaction is successfully completed, will result in shareholders of the Company holding less than 50% of the outstanding voting securities of the resulting corporation or entity;
(ii) the date on which the Company enters into an agreement with a Third Party pursuant to which the Company has agreed to support and recommend, or announces its support for or recommendation in favour of, a take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company made by a Third Party (or an Affiliate of such Third Party);
(iii) the date upon which a Third Party makes an unsolicited take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company, or announces an intention to do so;
(iv) the date on which the Company or any of its Affiliates agrees to the transfer, sale or other disposition, directly or indirectly, of all or substantially all of the assets of the Company, on a consolidated basis, or announces an intention to do so; or
(jv) announce the date on which a Third Party (together with any Affiliates) enters into an intention agreement to doacquire, or acquires, (A) direct or indirect beneficial ownership of, (B) the right to exercise control or direction over, or (C) a combination of direct or indirect beneficial ownership of and the right to exercise control or direction over securities of the Company, which together with any securities already directly or indirectly held or controlled by the Third Party and its Affiliates, in aggregate would constitute more than 50% of the voting rights attached to the outstanding voting securities of the Company.
(c) The restrictions in this Section 5.1 shall not prevent the Investor or any of its Affiliates from acquiring securities of the Company where such acquisition results from the Investor’s or any of its Affiliates’ acquisition of the securities of a Person or company which acquired the securities of the Company without the Investor’s solicitation or breach of this Agreement, provided that the primary assets of such Person are not Common Shares, voting securities or other securities convertible into Common Shares.
(d) Notwithstanding anything in this Section 5.1, the Investor shall be permitted at any time to make a confidential proposal to the Board regarding any of the transactions or activities contemplated in Section 5.1(a), to enter into confidential discussions or negotiations with the Board with respect to the terms of any such transactions or activities and to enter into any arrangement or understanding agreement with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having providing for or relating to make a public announcement regarding the consummation of any of the matters referred to in clauses (a) through (j) of this Standstill, such transactions or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingactivities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Skeena Resources LTD), Option Agreement (Skeena Resources LTD)
Standstill. Executive agrees that for a period of 18 months from Except with the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, at all times during the Standstill Period (as defined below in Section 21), each Investor agrees, severally, but not jointly, not to, directly or indirectly, and will cause each of its respective Affiliates (as defined in any manner (the obligations pursuant to this Section 13 being referred to as21) not to, the “Standstill”):directly or indirectly:
(a) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist, by purchasefacilitate or encourage any other individual, tender offergeneral or limited partnership, exchange offercorporation, through the acquisition limited liability or control unlimited liability company, joint venture, estate, trust, group, association or other entity of another person any kind or entitystructure (collectively, a "Person") to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any direct or indirect beneficial interest "solicitation" of "proxies" (as such terms are used in the proxy rules of SEC) to vote any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities Voting Securities of the Company or consent to any Subsidiary, other than the acquisition in the aggregate action from any holder of less than one-half of one percent any Voting Securities of the outstanding Company or conduct or suggest any binding or nonbinding referendum or resolution or seek to advise, encourage or influence any Person with respect to the voting securities of or the granting of any consent with respect to any Voting Securities of the Company;
(b) makepropose or nominate, or in cause or encourage any way participate in, directly Person to propose or indirectly, alone or in concert with othersnominate, any “solicitation” (as such term is used in candidates to stand for election to the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesBoard, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting removal of any voting securities member of the Company or any SubsidiaryBoard;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way otherwise participate in a “any "partnership, limited partnership, syndicate or other group” " (other than any group among some or all of the Affiliates of the Investors) within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock, or deposit any shares of Common Stock in a voting trust or similar arrangement, or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, or grant any proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or otherwise act in concert with any Person with respect to the SubsidiariesCommon Stock (other than Affiliates of the Investors);
(d) seek to call, or to request the call of, or call a special meeting of the stockholders of the Company, or make a request for a list of the Company's stockholders or other Company records;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to control or seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change to seek representation on, or to influence or seek to influence, whether through litigation or otherwise, the management, the Board or the policies of the Company; provided, however, that nothing herein shall prohibit the Investors from complying with legal or regulatory requirements, including, without limitation, the filing of any report or schedule required to be filed with the SEC, and provided, further that each of the Investors and their Affiliates, may privately communicate their views to the management or the Board;
(f) effect, seek to effect or in any way assist or facilitate any other Person in effecting or seeking to effect any: (i) tender offer or exchange offer to acquire securities of the Company; (ii) acquisition of any interest in any material asset or business of the Company or any Subsidiaryof its subsidiaries; (iii) merger, acquisition, share exchange or otherwise seekother business combination involving the Company or any of its subsidiaries; or (iv) recapitalization, alone restructuring, liquidation, dissolution or in concert other extraordinary transaction with others, election respect to the Company or appointment to any of its subsidiaries or representation on, material portion of its or to nominate or propose their businesses;
(g) other than through open market broker sale transactions where the nomination of any candidate to, the Board or the removal of any member identity of the Boardpurchaser is unknown, sell, offer or propose agree to sell directly or indirectly, through any matter to be voted upon by the stockholders swap or hedging transaction or otherwise, any security of the Company or any Subsidiaryright decoupled from such underlying security held by either Investor to any Person that would knowingly result in such Person, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 10% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Person who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 10% or more of the shares of the Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(h) request that the Company or any of its Representatives amend or waive any provision of this Section 3; or
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with any of the foregoing. Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including any New Nominee, from exercising his or her rights and fiduciary duties as a director of the Company.
Appears in 2 contracts
Sources: Director Nomination Agreement (Springowl Associates LLC), Director Nomination Agreement (Forestar Group Inc.)
Standstill. During the period commencing with the Effective Date and ending August 1, 2023 (the “Standstill Period”), the Executive agrees that for a period will not, and will cause each of 18 months from his Affiliates (or any other person or entity (including any Associate) acting on behalf of or at the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or otherwise with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardExecutive’s encouragement or support) not to, directly or indirectly, in any manner (including by assisting, encouraging or participating with others to), alone or in concert with others (in each case, except as approved by a resolution of the obligations pursuant Board or any committee thereof empowered to this Section 13 being referred to as, the “Standstill”take such action):
(a) acquire, offer offer, seek or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, ownership (beneficial or otherwise, any direct or indirect beneficial interest and in any voting securities manner) of any debt or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting equity securities of the Company (including Common Stock) or any Subsidiaryrights or options to acquire such ownership or securities convertible or exchangeable into such ownership (including Redeemable Warrants), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting each case excluding securities of the CompanyCompany issued as a dividend or otherwise in respect of securities of the Company otherwise owned by any such person or with respect to any;
(b) makeacquire, offer, seek or propose to acquire, or agree to acquire, ownership (beneficial or otherwise, and in any way manner) of any instruments, real or synthetic, that give Executive or his Affiliates or Associates (or any other person or entity acting on behalf of or at the Executive’s direction) the right to vote or direct the voting of any securities of the Company, in each case excluding securities of the Company issued as a dividend or otherwise in respect of securities of the Company otherwise owned by any such person and excluding any Earnout Shares and/or Adjustment Escrow Stock;
(c) propose or effect any tender or exchange offer, merger, consolidation, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company or its subsidiaries;
(d) (i) make or participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of defined under the Exchange Act) of proxies or consents with respect to vote, whether subject the election or removal of directors or any other proposal (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation); (ii) seek or knowingly encourage election to or exempt from representation on the proxy rulesBoard, or nominate or recommend the nomination of any candidate to the Board, or the removal of any member of the Board, or call or seek to advisecall, encourage directly or indirectly, any special meeting of shareholders of the Company for any reason whatsoever; (iii) make any stockholder proposal; (iv) seek or advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or Company; (v) engage in any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in course of conduct with the proxy rules purpose of the Securities and Exchange Commission) stockholders causing shareholders of the Company or to vote contrary to the recommendation of the Board on any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters matter presented to the Company’s shareholders for their vote or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within challenging the meaning of Section 13(d)(3) policies of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary Company; or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gvi) otherwise act, alone or in concert with others, to seek to propose to control or influence the Company management, Board, policies or affairs of the Company;
(e) form, join or in any Subsidiary or any of their respective stockholders or make any public statement way participate in a “group” (as defined under the Exchange Act) with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the securities of the Company (other than (i) any group previously identified prior to the date hereof in the Schedule 13D filed by the Executive and (ii) the Irrevocable Proxy described in Section 16(k));
(f) seek to change the determination or direction of the basic decisions of the Company, the present capitalization or dividend policy of the Company, the Company’s organizational documents or take any Subsidiaryother actions which may impede the acquisition or control of the Company by any person or entity, or otherwise take any action inconsistent with the ownership of securities “solely for the purpose of investment”;
(g) engage in any course of conduct causing the Company’s securities to become eligible for termination of registration pursuant to Section 12(g) of the Exchange Act;
(h) seek, alone make a request (public or otherwise) that the prohibitions set forth in concert with others, this Section 16 be waived or that the Company take any action which would permit the Executive or his Affiliates or Associates to control, change or influence the management, the Board or policies take any of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon actions prohibited by the stockholders of the Company or any Subsidiarythis Agreement;
(i) make any publicly disclosed proposal, public statement, public inquiry disclose (whether via social media platform or public disclosure of otherwise) any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, knowingly encourage or to enter into assist any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do other Person in undertaking any of the actions restricted foregoing.
(k) In addition, during the Standstill Period, the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or prohibited under clauses by proxy at each meeting of the Company’s stockholders (a“Stockholder Meeting”) through and either (ji) vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) (the “Remaining Executive Shares”) at such Stockholder Meeting in favor of any proposal recommended by the Board, or (ii) abstain from voting the Remaining Executive Shares at such Stockholder Meeting. Executive acknowledges and agrees that his attendance at each Stockholder Meeting shall not be, nor be deemed to be, “in protest”. In addition, simultaneously with the execution of this StandstillAgreement, the Executive shall execute and deliver to the Company and the Board an Irrevocable Proxy (in the form attached hereto as Exhibit C) irrevocably granting the Board the power and authority to represent the Executive at any Stockholder Meeting and (aa) vote the Remaining Executive Shares in favor of any proposal advanced by the Board, or take any action that might result (bb) abstain from voting the Remaining Executive Shares, such Irrevocable Proxy to become effective only in the Company having event that and for so long as the Executive fails to make (xx) otherwise appear in person or by proxy at any Stockholder Meeting or (yy) vote the Remaining Executive Shares in the manner set forth in this Section 16(k).
(l) If a public announcement regarding any Change in Control occurs prior to the end of the matters referred Standstill Period, then the Executive’s obligations under this Section 16 shall cease to apply as of the date of the consummation of such Change in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingControl.
Appears in 2 contracts
Sources: Settlement Agreement (Electric Last Mile Solutions, Inc.), Settlement Agreement (Electric Last Mile Solutions, Inc.)
Standstill. Executive So long as the Company is in compliance with its obligations under this Agreement, then unless approved in advance by the Board of Directors of the Company, each Holder agrees that neither it nor any of its Representatives acting on behalf of such Holder will, for a period of 18 months from ending immediately after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members annual shareholders meeting of the BoardCompany in 2016 (and in all events no later than December 31, 2016), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquiremake any proposal to the Board of Directors of the Company, any of the Company’s Representatives or any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including “solicitation” of “proxies” as such terms are defined or propose to acquireused in Regulation 14A of the Exchange Act) offering (i) any business combination, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchasemerger, tender offer, exchange offer, through the acquisition offer or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving the Company or any Subsidiary;
of its subsidiaries, (hii) seekany restructuring, alone recapitalization, liquidation or in concert with others, to control, change or influence the management, the Board or policies of similar transaction involving the Company or any Subsidiaryof its subsidiaries, or otherwise seek, alone or except in concert each case solely in connection with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of contractual arrangements between MSKCC and the Company or its then existing subsidiaries, (iii) any Subsidiary;
(i) make acquisition by MSKCC or any publicly disclosed proposal, public statement, public inquiry or public disclosure of its Affiliates of any intention, planof the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, or arrangement (whether written rights or oral) inconsistent with the foregoing, or make or disclose options to acquire interests in any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCompany’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, (iv) any proposal by MSKCC to seek representation on the Board of Directors of the Company; or
(jb) announce form an intention Exchange Act Section 13(d) “group” with any third party to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do take any of the actions restricted set forth in Section 4.1(a);
(c) in the case of MSKCC together with any of its Affiliates, acquire (or prohibited under clauses propose or agree to acquire), of record or beneficially, by purchase or otherwise, any equity securities representing in aggregate more than one percent (a) through (j1%) of this Standstilloutstanding voting power in shares of the Company, or take any action that might result rights or options to acquire interests in the Company having to make a public announcement regarding any of the matters referred to Company’s equity securities representing in clauses aggregate more than one percent (a) through (j1%) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with outstanding voting power in shares of the foregoingCompany.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Actinium Pharmaceuticals, Inc.), Investors’ Rights Agreement (Memorial Sloan-Kettering Cancer Center)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, Standstill Period and unless specifically invited in writing otherwise approved by the BoardBoard of Directors (excluding any Investor Designees), acting by resolution approved by a majority the Investor will not, and will cause each of all members of the Boardits Affiliates, directors, officers or employees not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):acting alone or as part of a 13D Group:
(a) acquireacquire or agree, offer offer, seek or propose to acquirepropose, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or control of another person or entity, by joining any 13D Group or otherwise, any direct to acquire ownership of any, (x) of the businesses or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities material assets of the Company or any Significant Subsidiary (except for any transaction in the ordinary course of business), (y) any Equity Securities or any equity securities of any Significant Subsidiary, or (z) rights or options to acquire such ownership other than (i) the delivery of the Shares pursuant to the Stock Purchase Agreement, (ii) the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company’s securities as a result of any stock splits, stock dividends or other distributions or recapitalizations or offerings made available by the Company to holders of Common Stock, including rights offerings, (iii) any acquisition of the Company’s securities approved by the Board of Directors (excluding any Investor Designees), or (iv) any acquisition of the Company’s securities pursuant to a Permitted Transfer (each event listed in clauses (i) through (iv), a “Permitted Acquisition”);
(b) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in within the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 meaning of the Exchange Act) of proxies or consents relating to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity election of directors with respect to the voting Company, or become a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than the Investor Designees, or call, or seek or propose to call, any voting meeting of the Company’s shareholders in connection therewith;
(c) in any manner, agree, attempt, seek or propose to deposit any securities of the Company or any Subsidiary;
rights to acquire (c) initiatewhether currently, propose upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or “solicit” (as such term is used in the proxy rules any combination of the foregoing) any Equity Securities and Exchange Commission) stockholders of the Company in any voting trust or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholderssimilar arrangement;
(d) form, form or join or any way participate in the formation of a “group” within the meaning of Section 13(d)(3) 13D Group (other than a 13D Group consisting only of the Exchange Act Investor and its Affiliates) with respect to any voting Equity Securities or equity securities of any Significant Subsidiary, or grant to any Person any proxy with respect to the Company or exercise of voting rights with respect to the Subsidiaries;Shares; or
(e) acquirepublicly announce any intention, offer to acquire plan or agree to acquire, directly arrangement or indirectly, alone finance (or arrange financing for) any Person in concert connection with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Sources: Investor Rights Agreement (Western Digital Corp), Investor Rights Agreement (Hitachi LTD)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquireSubject to Section 5.2(b), offer or propose to acquireuntil the three (3)-year anniversary of the Closing Date (the “Standstill Period”), solicit an offer to sell or agree to acquirethe Holder shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or in concert with others, without the prior written approval of the Board:
(i) except with respect to exercising its rights in accordance with Article VI (subject to the limitations set forth therein) or with respect to the Holder’s acquisition of the Acquired Shares pursuant to Article II of the Contribution Agreement, acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender offer, or exchange offer, knowingly through the acquisition or of control of another person Person (as defined below), through swap or entityhedging transactions, purchase of options or otherwiseotherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of any direct Equity Securities;
(ii) propose or indirect beneficial interest in initiate any voting securities tender or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, exchange offer involving any voting securities Equity Securities of the Company or any Subsidiaryother business combination, acquisition, merger, joint venture, recapitalization, restructuring or similar transaction involving the Company, in each case, other than a transaction approved by the acquisition Board in writing;
(iii) other than solely to solicit proxies to effectuate the aggregate of less than one-half of one percent election of the outstanding voting securities Holder Designees pursuant to Section 8.1, solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any become a “solicitationparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesin, or seek to knowingly assist, knowingly advise, knowingly encourage or knowingly influence in any manner whatsoever Person (other than the Company) in, any person or entity with respect to the voting “solicitation” of any voting securities proxy, consent or other authority to vote any Voting Securities of the Company (other than such assistance, advice, encouragement or any Subsidiaryinfluence that is consistent with the Board’s recommendation in connection with such matter);
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(div) form, join join, or in any way knowingly participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities Voting Securities of the Company or otherwise act in concert with any Person in respect of any Voting Securities of the SubsidiariesCompany other than its Affiliates;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gv) 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 control the management, the Board or policies of the Company or any Subsidiaryor, or otherwise seekother than in accordance with Article VIII, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board or to obtain representation on the Board;
(vi) (A) grant any proxy, consent or propose other authority to vote with respect to any matter matters (other than to be voted upon by the named proxies included in the Company’s proxy card) for at any annual or special meeting of 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 (each, a “Stockholder Meeting”) or (B) deposit or agree or propose to deposit any Voting Securities of the Company in any voting trust or similar arrangement, or subject any Voting Securities of the Company to any agreement or arrangement with respect to the voting of such securities (including a voting agreement or pooling arrangement), other than (I) any such voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent or other authority to vote in connection with a solicitation made by or on behalf of the Company or (II) customary brokerage accounts, margin accounts and prime brokerage accounts so long as the Holder retains the sole right to vote any Subsidiarysuch securities at any Stockholder Meeting;
(ivii) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose publicly advance any request or proposal to amend, modify or waive or terminate any provision of this Standstill Section 5.2; provided, that the Holder may make confidential requests to the Board to amend, modify or seek permission to waive any provision of this Section 5.2, it being understood the Board may accept or reject any such request or proposal;
(viii) make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillstatement, or take any action which would reasonably be expected to require that might result in the Company having to make a public announcement announcement, regarding any of the matters referred to in clauses foregoing; or
(aix) through enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the foregoing (jother than this Agreement) of this Standstillor knowingly encourage, knowingly assist, solicit, seek, or otherwise intentionally take, or solicit, or seek to cause or encourage others any Person to take, undertake any action inconsistent with this Section 5.2.
(b) Notwithstanding the foregoingforegoing in Section 5.2(a) or any other provision of this Agreement, the Holder and its Affiliates shall not be prohibited from making a confidential offer or proposal directly to the Board, and no restrictions set forth in Section 5.2(a) or any other provision in this Agreement shall in any way be deemed to (i) restrict or prohibit any actions taken or to be taken by any Holder Designee in its capacity as a member of the Board, (ii) restrict or prohibit the Holder from exercising its rights pursuant to any voting agreements entered into with Crestview or the Employee Shareholder Committee in connection with the transactions contemplated hereby in accordance with the terms thereof, (iii) restrict or prohibit the Holder from exercising any of its rights under this Agreement, including under Section 6.4 and Section 7.2, and its consent rights set forth in Article IX, or (iv) restrict or prohibit the Holder from exercising its rights as a Holder in accordance with the terms of the Preferred Stock.
(c) In addition to the restrictions set forth in Section 5.1 and Section 5.2(a), until the seven (7)-year anniversary of the Closing Date, neither Holder nor any of its Affiliates shall be permitted to enter into or consummate any privately negotiated Transfer of Equity Securities, which would result in any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act) having Beneficial Ownership of fifteen percent (15%) or more of the outstanding capital stock of the Company after giving effect to such Transfer, other than any Transfer to any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act) having Beneficial Ownership of fifty percent (50%) or more the outstanding capital stock of the Company before giving effect to such Transfer. For the avoidance of doubt, this Section 5.2(c) shall not restrict any Transfer of Equity Securities pursuant to (i) any registered underwritten offering, any registered or Rule 144 sale to the public through a broker or underwriter where the Holder does not direct the broker or underwriter with respect to any ultimate purchasers, or (ii) any tender offer, exchange offer, merger, business combination or other similar transaction, in each case, in accordance with, and to the extent permitted by, Section 5.1, to the extent applicable; provided, further, that in the case of a third-party tender or exchange offer, such third-party tender or exchange offer shall be with respect to at least a majority of the outstanding shares of Common Stock.
(d) For all purposes of this Agreement, the Holder shall not be deemed to be a part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with Crestview and the Employee Shareholder Committee, as applicable, solely as a result of the transactions contemplated by voting agreements entered into with such parties pursuant to the terms of the Contribution Agreement.
Appears in 1 contract
Sources: Shareholder Agreement (Victory Capital Holdings, Inc.)
Standstill. Executive agrees The Ancora Parties each agree that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period (as hereinafter defined), neither Executive nor any of his the Ancora Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of MutualFirst:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an "Acquisition"), any voting securities of MutualFirst, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition Ancora Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyMutualFirst common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryMutualFirst;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join join, encourage, influence, advise or in any way participate in a “"group” " within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the Ancora Parties) with respect to any voting securities of MutualFirst or otherwise in any manner agree, attempt, seek or propose to deposit any securities of MutualFirst in any voting trust or similar arrangement, or subject any securities of MutualFirst to any arrangement or agreement with respect to the Company voting thereof (other than any such voting trust, arrangement or agreement solely among the SubsidiariesAncora Parties) except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the Ancora Parties as long as any additional member(s) agrees to be bound by the terms of this Agreement);
(eiv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary MutualFirst or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryMutualFirst;
(fv) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryMutualFirst;
(gvi) otherwise act, alone or in concert with others, to propose or seek to propose offer to the Company or any Subsidiary MutualFirst or any of their respective its stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with MutualFirst or the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of MutualFirst or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of MutualFirst, nominate any person as a director of MutualFirst who is not nominated by the then incumbent directors (provided that if there is a vacancy on the MutualFirst Board of Directors the Ancora Parties may submit suggestions on a confidential basis to the MutualFirst Board of Directors or representation on, or the Nominating Committee of the MutualFirst Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryMutualFirst;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of MutualFirst common stock beneficially owned by the Ancora Parties to any person that would reasonably be understood to be the beneficial owner of 5% or more of the outstanding shares of MutualFirst common stock, planexcept in a transaction approved by the MutualFirst Board of Directors;
(viii) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against MutualFirst or the Bank or their respective directors or officers, or arrangement (whether written or oral) inconsistent with the foregoingin any derivative litigation on behalf of MutualFirst, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillexcept for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillParagraph 2, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any MutualFirst annual meeting of stockholders during the Standstill Period, the Ancora Parties agree: (1) to vote all shares of MutualFirst they or any of them beneficially own in favor of the nominees for election or reelection as director of MutualFirst selected by the Board of Directors of MutualFirst and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any MutualFirst stockholder to a vote of the MutualFirst stockholders, to vote all of the MutualFirst shares they beneficially own in accordance with the recommendation of the MutualFirst Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇▇ or the Substitute in his capacity as a member of MutualFirst's Board of Directors or the Bank's Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the Ancora Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement directly with the President and Chief Executive Officer of MutualFirst, or otherwise intentionally takeupon invitation, with other members of management or solicitthe Board of Directors of MutualFirst. The "Standstill Period" shall begin as of the date of this Agreement and shall remain in full force and effect until the close of business on the date of the 2019 annual meeting of stockholders of MutualFirst. Notwithstanding anything in this Agreement to the contrary, at the sole option of MutualFirst, the Standstill Period may be terminated by MutualFirst in the event that the beneficial ownership of the Ancora Parties decreases below 5% of the outstanding shares of MutualFirst common stock (in which event M▇. ▇▇▇▇▇▇▇ or cause or encourage others to takethe Substitute, any action inconsistent with as the foregoingcase may be, shall promptly submit his resignation as a director of MutualFirst and the Bank).
Appears in 1 contract
Standstill. Executive agrees that for (a) During the Standstill Period, each AREX Party shall not, and shall cause its Representatives not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to a period material amount of 18 months from the date assets or securities of Executive’s termination of employment for any reason, neither Executive nor Fiesta or any of his affiliates its subsidiaries, (B) any form of restructuring, recapitalization or persons similar transaction with respect to Fiesta or entities acting at his direction any of its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such transaction involves a Change of Control (as defined below) of Fiesta; it being understood that the foregoing shall not prohibit the AREX Parties or their Affiliates from acquiring Voting Securities within the limitations set forth in Section 5(a)(iii);
(ii) engage in, or assist in the engagement in, any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with his assistance willrespect to any Voting Securities, unless specifically invited or assist or participate in writing by the Board, acting by resolution approved by a majority of all members of the Boardany other way, directly or indirectly, in any manner solicitation of proxies (or written consents) with respect to, or from the holders of, any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a- 1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, as amended, and with the rules and regulations thereunder (the obligations pursuant “Exchange Act”), to this Section 13 being referred to asvote any securities of Fiesta (including by initiating, the encouraging or participating in any “Standstill”):withhold” or similar campaign);
(aiii) purchase or otherwise acquire, offer or offer, seek, propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control ownership (including beneficial ownership) of another person or entity, or otherwiseany securities of Fiesta, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or securities convertible into any assets or exchangeable forliabilities of Fiesta; provided that the AREX Parties and their Affiliates, in the aggregate, may acquire beneficial ownership of up to 14.9% of the then outstanding Voting Securities;
(iv) advise, encourage or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of Fiesta;
(v) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the Company securities of Fiesta or any Subsidiaryrights decoupled from the underlying securities held by any of the AREX Parties to any person not
(A) a party to this Agreement, (B) a member of the Board, (C) an officer of Fiesta, or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other than the acquisition ownership interest representing in the aggregate in excess of less than one-half of one percent 4.9% of the shares of Common Stock outstanding voting securities at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with no known history of the Companyactivism or known plans to engage in activism;
(bvi) maketake any action in support of or make any proposal or request that constitutes or would result in: (A) advising, controlling, changing or influencing any director or the management of Fiesta, including, but not limited to, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of Fiesta, (C) any other material change in Fiesta’s management, business or corporate structure, (D) seeking to have Fiesta waive or make amendments or modifications to the Bylaws or the Certificate of Incorporation (as defined below), or other actions that may impede or facilitate the acquisition of control of Fiesta by any person, (E) causing a class of securities of Fiesta to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of Fiesta to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) communicate with stockholders of Fiesta or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(viii) engage in any way participate incourse of conduct with the purpose of causing stockholders of Fiesta to vote contrary to the recommendation of the Board on any matter presented to Fiesta’s stockholders for their vote at any meeting of Fiesta’s stockholders or by written consent;
(ix) act, directly including by making public announcements or indirectlyspeaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence Fiesta’s stockholders, management or the Board with respect to Fiesta’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions, or strategy or to obtain representation on the Board or seek the removal of any director in any manner, except as expressly permitted by this Agreement;
(x) call or seek to call, or request the call of, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules meeting of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to votestockholders, whether subject to or exempt from not such a meeting is permitted by the proxy rulesBylaws, including a “town hall meeting”;
(xi) deposit any shares of Common Stock or seek to advise, encourage or influence other Voting Securities in any manner whatsoever voting trust or subject any person shares of Common Stock or entity other Voting Securities to any arrangement or agreement with respect to the voting of any shares of Common Stock or Voting Securities (other than any such voting securities of trust, arrangement or agreement solely among the Company or any SubsidiaryAREX Parties that is otherwise in accordance with this Agreement);
(cxii) initiateseek, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt advise any person, to cause submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to Fiesta or seek, encourage others to initiate or take any such stockholder proposal; or otherwise communicate other action with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented respect to the Company’s election or its Subsidiaries’ stockholdersremoval of any directors;
(dxiii) form, join or in any other way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities Voting Security; provided, however, that nothing herein shall limit the ability of an Affiliate of an AREX Party to join the Company “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that the SubsidiariesAREX Party has formed a group with such Affiliate;
(exiv) acquire, offer demand a copy of Fiesta’s list of stockholders or its other books and records or make any request pursuant to acquire Rule 14a-7 under the Exchange Act or agree under any statutory or regulatory provisions of Delaware providing for stockholder access to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, books and records (iincluding lists of stockholders) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryFiesta;
(fxv) arrange, make any request or in submit any way participate, directly proposal to amend or indirectly, in any financing for waive the purchase terms of any voting securities or securities convertible or exchangeable into or exercisable this Section 5 other than through non-public communications with Fiesta that would not be reasonably likely to trigger public disclosure obligations for any voting Party;
(xvi) engage any private investigations firm or other person to investigate any of Fiesta’s directors or officers;
(xvii) disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to any director or the Company’s management, policies, strategy, operations, financial results or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of the Company or any Subsidiary;this Agreement; or
(gxviii) otherwise actenter into any discussions, alone negotiations, agreements or in concert understandings with othersany person with respect to any action the AREX Parties are prohibited from taking pursuant to this Section 5, to or advise, assist, knowingly encourage or seek to propose persuade any person to the Company or take any Subsidiary or any of their respective stockholders action or make any public statement with respect to any mergersuch action, business combinationor otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding anything to the contrary contained in this Section 5, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization the AREX Parties shall not be prohibited or other transaction involving the Company or any Subsidiary;
restricted from: (hA) seek, alone or in concert communicating privately with others, to control, change or influence the management, the Board or policies any officer or director of Fiesta, in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Company AREX Parties or their respective Affiliates, Fiesta or its Affiliates or any SubsidiaryThird Party, subject in any case to any confidentiality obligations to Fiesta of any such director or officer and applicable law, rules or regulations; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any AREX Party, provided that a breach by the AREX Parties of this Agreement is not the cause of the applicable requirement; or (C) privately communicating to any of their potential investors or investors factual information regarding Fiesta, provided such communications are subject to reasonable confidentiality obligations and are not otherwise seek, alone or reasonably expected to be publicly disclosed.
(b) The provisions of this Section 5 shall not limit in concert with others, election or appointment to or representation on, or to nominate or propose any respect the nomination actions of any candidate director of Fiesta in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to Fiesta and its stockholders and the Company Policies (it being understood and agreed that neither the AREX Parties nor any of their Affiliates shall seek to do indirectly through the New Director (or any Replacement) anything that would be prohibited if done by any of the AREX Parties or their Affiliates). The provisions of this Section 5 shall also not prevent the AREX Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 2 hereto).
(c) During the Standstill Period, each AREX Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of Fiesta or any other persons to engage in actions which, if taken by any AREX Party, would violate this Agreement.
(d) Notwithstanding anything contained in this Agreement to the contrary, the provisions of Sections 1, 2 and 3 of this Agreement shall automatically terminate upon the consummation of a Change of Control transaction agreed to by the Board and involving Fiesta if the acquiring or counter-party to the Change of Control transaction has conditioned the closing of the transaction on the termination of such sections.
(e) During the Standstill Period, each of the AREX Parties shall provide to Fiesta true, accurate and complete copies of any new Investor Agreements (as defined below) and any amendment, modification, extension or termination of any Investor Agreements, in each case, within five (5) business days of the execution or termination, as applicable, thereof.
(f) During the Standstill Period, each of the AREX Parties agrees not to, the Board and to cause its Representatives not to, comment publicly about any director or the removal Company’s management, policies, strategy, operations, financial results or affairs or any transactions involving Fiesta or any of its subsidiaries, except as expressly permitted by this Agreement.
(g) At any member time the AREX Parties cease to have a Schedule 13D filed with the SEC and during the Standstill Period, upon reasonable written notice from Fiesta pursuant to Section 16 hereof, the AREX Parties shall promptly provide Fiesta with information regarding the amount of the Boardsecurities of Fiesta (a) beneficially owned by each such entity or individual, or propose any matter (b) with respect to be voted upon by which the stockholders of the Company or any Subsidiary;
AREX Parties have (i) make any publicly disclosed proposal, public statement, public inquiry direct or public disclosure indirect rights or options to acquire or (ii) any economic exposure through any derivative securities or contracts or instruments in any way related to the price of any intention, plansuch securities, or arrangement (whether written or oralc) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to which any provision of the Standstill; or
(j) announce an intention AREX Party has hedged its position by selling covered call options. This ownership information provided to doFiesta will be kept strictly confidential, or unless required to enter into any arrangement or understanding with others (whether written or oral) be disclosed pursuant to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to takeapplicable laws and regulations, any action inconsistent subpoena, legal process or other legal requirement or in connection with the foregoingany litigation or similar proceedings in connection with this Agreement.
Appears in 1 contract
Sources: Cooperation Agreement
Standstill. Executive agrees that for a period of 18 months from Until 12:00 a.m., New York City time, on the date of Executive’s termination of employment that is forty-five (45) days prior to the last date pursuant to which stockholder nominations for director elections are permitted pursuant to the By-Laws with respect to the 2023 Annual Meeting (such date, the “Expiration Date”), and except as otherwise permitted by this Agreement, Stockholder shall not, and shall cause its controlled Affiliates (including the funds listed on Schedule A hereto) and Associates and any reason, neither Executive nor any of his affiliates Representatives acting on its or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardtheir respective behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, whether alone or in concert with others, by purchasewithout the consent, tender offer, exchange offer, through the acquisition invitation or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities authorization of the Company or any Subsidiarythe Board, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;each case:
(ba) makesolicit proxies, or engage 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 promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of SEC (as defined below) under the Exchange ActAct (as defined below)) of proxies or written consents of holders of any shares of Common Stock with respect to, or from the holders of, any shares of Common Stock or any other securities of the Company entitled to votevote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or exempt from the proxy rulesother contingencies (collectively, “Voting Securities”), or seek to advisemake, encourage or influence in any manner whatsoever way participate in (other than by voting its shares of Voting Securities in a way that does not violate the terms hereof), any person solicitation of any proxy, consent or entity other authority to vote any Voting Securities with respect to the voting election of directors or any voting securities other matter, otherwise conduct any nonbinding referendum with respect to the Company, or advise or encourage any person in any proxy contest or any solicitation with respect to the Company not approved and recommended by the Board (including relating to the removal or the election of directors and including advising or encouraging any person to oppose, withhold support from, vote against or nominate opposing candidates against any person nominated and recommended by the Board for election to the Board), other than solicitations or actions as a participant in support of all of the Company or any SubsidiaryCompany’s director nominees;
(cb) initiate, propose form or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any Voting Securities, or deposit any Voting Securities in a voting securities trust or subject any Voting Securities to any voting agreement or other arrangement of similar effect, other than, in each case, solely with Stockholder’s controlled Affiliates;
(c) call a special meeting of the stockholders of the Company or make a stockholder proposal (whether pursuant to Rule 14a-8 under the SubsidiariesExchange Act or otherwise) at any meeting of the stockholders of the Company;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company seek election or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangeappointment to, 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 managementrepresentation on, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination or appointment of, or recommend the nomination of, any person to be a member of any candidate to, the Board or officer of the Company, (ii) seek the removal of any member of the BoardBoard or officer of the Company, or propose (iii) knowingly advise or encourage any matter person to be voted upon by do any of the stockholders forgoing;
(e) institute, solicit or join any litigation, arbitration or other proceeding against the Company or any of its subsidiaries, its current of former directors or its officers (including derivative actions), each in their capacity as such, make any request for stock list materials or other books and records of the Company or any Subsidiaryof its subsidiaries under Section 220 of the General Corporation Law of the State of Delaware or any other statutory or regulatory provisions providing for stockholder access to books and records of the Company or its Affiliates; provided that nothing in this Section 2(e) shall prevent Stockholder from (i) bringing litigation to enforce any provision hereof, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against Stockholder, (iii) exercising statutory appraisal rights or (iv) being a member of a class in a class action brought by another stockholder of the Company; provided that such litigation is not related to any breach hereof by Stockholder;
(f) subject to Section 1(m) above, enter into or maintain any compensatory arrangements with any director of the Company or nominee for director of the Company;
(g) make any public request or submit any public proposal to amend or waive any of the terms of this Agreement or any such private request or private proposal that would reasonably be expected to require any public disclosure of such request or proposal by Stockholder or its Affiliates, the Company or its Affiliates or any third party;
(h) sell or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, shares of Common Stock or any derivatives relating to Common Stock representing 1% or more of the Company’s outstanding Common Stock in a single block trade to any third party if at the time of such sale Stockholder knows the identity of the purchaser and that such purchaser has either (i) has filed a Schedule 13D with respect to the Company, or (ii) has run (or publicly announced an intention to run) a proxy contest or consent solicitation with respect to another company in the past three (3) years; provided that nothing herein shall restrict or limit Stockholder’s ability to sell any shares of Common Stock or any derivatives relating to Common Stock in an open market transaction (subject to applicable law, including federal securities laws);
(i) make or submit any publicly disclosed proposal, announcement, statement or request regarding (A) controlling, changing or influencing the Board or any officer of the Company, including proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any Extraordinary Transaction (as defined below) or exploration thereof (it being understood that this clause shall not restrict Stockholder 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 (C) any other change in the Company’s or any of its subsidiaries’ operations, business, certificate of incorporation or formation, by-laws or other governing documents, corporate strategy, corporate structure, capital structure or allocation, or share repurchase or dividend policies; provided that, for the avoidance of doubt, Stockholder and its Affiliates shall be entitled to engage in private discussions with respect to such matters with limited partners of Stockholder or its Affiliates in a manner in which public statementdissemination of such statements would not be reasonably anticipated;
(j) acquire, public inquiry or public disclosure offer or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of record or beneficial ownership of any intention, plan, Voting Securities or arrangement (whether written engage in any swap or oral) inconsistent with the foregoing, hedging transactions or make or disclose other derivative agreements of any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement nature with respect to any provision Voting Securities, in each case, individually or in the aggregate that would result in Stockholder and its Affiliates collectively having beneficial ownership of, or economic exposure to, more than 5.0% of the Standstilloutstanding Voting Securities;
(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 (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, and would result in Stockholder (together with their respective controlled Affiliates) failing to have an aggregate net long position (as defined in Rule 14e-4 under the Exchange Act) in the Company; or
(jl) announce an intention to do, or to enter into any agreement, arrangement or understanding undertaking with others any person with respect to the foregoing. The Company shall provide Stockholder with written notice of the occurrence of the Expiration Date on the Expiration Date. Notwithstanding anything to the contrary contained in this Section 2, Stockholder shall not be prohibited or restricted from: (whether written A) communicating privately with the Board, any member of senior management of the Company or oralany director of the Company regarding any matter, so long as any such communication would not reasonably be expected to require any public disclosure of such communications by Stockholder or its Affiliates, the Company or its Affiliates or any third party; (B) making any factual statement to do, comply with any subpoena or other legal process or respond to finance, intentionally advise, enable, assist a request for information from any governmental authority with jurisdiction over such person from whom information is sought; or encourage others (C) privately communicating to do Stockholder’s or its controlled Affiliates’ investors or potential investors regarding the Company; provided that any such communications to investors or potential investors (1) are subject to reasonable confidentiality obligations of such investors or potential investors and are not reasonably expected to be publicly disclosed and (2) are not made with an intent to circumvent any of the actions restricted or prohibited under clauses (a) through (j) of restrictions in this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAgreement.
Appears in 1 contract
Sources: Cooperation Agreement (Centene Corp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer acquire beneficial ownership in excess of 4.9% of the outstanding shares of Common Stock (based on the latest annual or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary15(d) of the Exchange Act), other than the acquisition in of equity-based compensation pursuant to Section 9 hereof and the aggregate exercise of less than oneany options or conversion of any convertible securities comprising such equity-half of one percent of the outstanding voting securities of the Companybased compensation;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or any of their respective Affiliates as a result of this Agreement;
(d) engage in discussions with other stockholders of the SubsidiariesCompany, 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, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the stockholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (fother than the Shareholder Group and their Affiliates) arrangewould beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any way participatetransferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) seekdisparage the Company, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, Board or propose any matter to be voted upon by the stockholders officer or key employee of the Company with respect to any matter relating to the Company or any Subsidiarythe events leading to the entering into of this Agreement, provided that this provision shall not apply to (i) 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; (ii) communications that are required by an applicable legal obligation or are subject to contractual provisions providing for confidential disclosure; or (iii) communications relating to members of the Board other than in their capacity as directors of the Company;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit (x) ▇▇▇▇▇ 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) the 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 the Board and has been announced by the Company.
Appears in 1 contract
Sources: Shareholder Agreement (Intevac Inc)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the Expiration Date or until such earlier time as the restrictions in this paragraph 8 terminate as provided herein (such period, neither Executive nor any of his affiliates or persons or entities the “Restricted Period”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, Company or the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of defined under the Securities and Exchange Commission promulgated pursuant to Section 14 Act of 1934, as amended (the “Exchange Act”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 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 Schedule 14A promulgated under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate ) in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersconsents;
(db) knowingly encourage, advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum, binding or non-binding, (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act with respect to any voting securities Voting Securities, other than solely with other Affiliates of the Company Investors 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 Subsidiariesacquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case if such acquisition or transaction would result in the Investors having beneficial ownership of more than 9.9% of the Company’s outstanding common stock or economic exposure to more than 14.9% of the Company’s outstanding common stock;
(e) acquiresell, offer to acquire or agree to acquiresell, all or substantially all, directly or indirectly, alone through swap or in concert with others, by purchase, exchange hedging transactions or otherwise, (i) any of voting rights decoupled from the assets, tangible and intangible, underlying common stock of the Company or held by the Investors to any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryThird Party;
(f) arrange, make or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or securities convertible or exchangeable into or exercisable for any voting securities or assets of extraordinary transaction involving the Company or any Subsidiary;
of its subsidiaries or its or their securities or assets (geach, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise actparticipating 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); or make, directly or indirectly, any public proposal, either alone or in concert with others, to seek to propose to the Company or any Subsidiary or the Board that would reasonably be expected to require the Company to make a public announcement regarding any of their respective stockholders the types of matters set forth above in this paragraph;
(g) enter into a voting trust, arrangement or make agreement or subject any public statement Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or hereafter owned by them and other transaction involving than granting proxies in solicitations approved by the Company or any SubsidiaryBoard;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise (i) seek, alone or in concert with others, election or appointment to to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, the Board except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board, Board or propose any matter to be voted upon by the stockholders (iii) conduct a referendum of the Company or any Subsidiarystockholders;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise);
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to amendbooks and records;
(k) except as set forth herein, waive or terminate any provision of this Standstill or seek permission to or make any public announcement proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to the Company’s Certificate of Incorporation or Bylaws, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 8; provided, however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement, (ii) making counterclaims with respect to any provision proceeding initiated by, or on behalf of, the Company against a Restricted Person, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, or (iv) exercising statutory appraisal rights; provided, further, that the Standstillforegoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(m) enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investors are prohibited from taking pursuant to this paragraph 8; or
(jn) announce an intention make any request or submit any proposal, directly or indirectly, to doamend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal; provided, that the restrictions in this paragraph 8 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any such breach, upon five (5) business days’ prior written notice by the Investors following a material breach of this Agreement by the Company (including, without limitation, a failure to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do appoint any of the actions restricted New Directors and otherwise constitute the Board in accordance with paragraph 1, a failure to appoint a replacement in accordance with paragraph 3, or prohibited under clauses (aa failure to issue the Press Release or to present the Company Guidance in accordance with paragraph 10) through (j) if such breach has not been cured within such notice period, provided that the Investors are not in material breach of this StandstillAgreement at the time such notice is given, or take (ii) the announcement by the Company of a definitive agreement with respect to any action Extraordinary Transaction that might would result in the Company having to make a public announcement regarding acquisition by any person or group of more than 50% of the matters referred Company’s outstanding common stock, (iii) the commencement of any tender or exchange offer (by a person other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Company’s outstanding common stock, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer, (iv) such time as the Company issues a preliminary proxy statement, definitive proxy statement or other proxy materials in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action connection with the 2016 Annual Meeting that is inconsistent with the foregoingterms of this Agreement 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 substantially impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting of Stockholders. Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 8 shall prohibit or restrict the New Directors from exercising their rights and fiduciary duties as directors of the Company or restrict their discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company. Further, notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall prevent the Investors from making public statements regarding any Extraordinary Transaction announced by or in respect of the Company, and nothing in this Agreement shall prevent the Company from responding to such statements, subject to the obligations of the parties under paragraph 11 unless such statements do not expressly target any individual.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonCooperation Period, neither Executive nor any of his affiliates or persons or entities each Sonic Party will not, and will cause its Affiliates and Associates and its and their respective principals, directors, general partners, officers, employees, and agents and representatives acting at his direction or on their behalf (collectively with his assistance willthe Sonic Parties, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) to not, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to as, prior written consent of the “Standstill”):Board:
(ai) acquire, offer or propose to acquireoffer, solicit an offer to sell seek or agree to acquire, directly by purchase or indirectlyotherwise, or direct any third party in the acquisition of beneficial ownership of any securities of the Company or assets of the Company, or rights or options to acquire any securities of the Company or assets of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to securities of the Company, in each case if such acquisition, offer, agreement or transaction would result in the Sonic Parties (together with their respective Affiliates and Associates) having beneficial ownership of more than the greater of (x) 9.9% of the shares of Company Common Stock outstanding at such time and (y) to the number of shares beneficially owned by the largest stockholder of the Company (other than the Restricted Persons) at such time;
(ii) (A) request or call for (publicly or otherwise) (or for the avoidance of doubt support another person’s request or call for) a special meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), (B) seek, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition election or control of another person or entityappointment to, or otherwiserepresentation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any direct candidate to the Board, except as expressly set forth in Section 1, (C) make or indirect beneficial interest in be the proponent of any voting securities or direct or indirect rights, warrants or options stockholder proposal to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
, (bD) make, or in any way participate in, directly or indirectlyseek, alone or in concert with othersothers (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of stockholders;
(iii) make any request for stock list materials or other books and records of the Company or any of its subsidiaries under Section 220 of the DGCL or other statutory or regulatory provisions providing for stockholder access to books and records;
(iv) engage in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant SEC excluding for the avoidance of doubt carve-outs relating to Section 14 solicitations of the Exchange Actten or fewer stockholders) of proxies or consents to vote, whether subject to or exempt from the proxy rulesconsents, or seek to intentionally and deliberately 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) initiatesecurities convertible or exchangeable into or exercisable for any such securities, propose with respect to the election or removal of directors or any other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersconsents;
(dv) formsubmit (publicly or otherwise) a proposal for, join or offer of (with or without conditions), or participate in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquirein, offer to acquire or agree to acquire, directly or indirectly, either alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, reorganization, dissolution, liquidation, recapitalization dissolution or other similar extraordinary transaction involving the Company or any Subsidiaryof its subsidiaries or joint ventures or any of their respective securities or assets (an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict a Sonic Party from tendering shares, receiving payment for shares or otherwise participating in any such transaction (including any strategic transaction upon which stockholders are asked to vote) on the same basis as other stockholders of the Company);
(hvi) seekmake any public proposal with respect to (A) any change in the number of directors or the filling of any vacancies on the Board, alone (B) any change in the capitalization, capital allocation policy or dividend policy of the Company, (C) any other change in concert with others, to control, change or influence the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Board Company’s Certificate of Incorporation or policies Bylaws, or other actions which may impede 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 Subsidiarysecurities 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 (as defined below);
(vii) knowingly encourage or intentionally and deliberately advise or influence any other person or intentionally and deliberately assist any person in so encouraging, advising or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or act or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter, if applicable), or otherwise seekform, alone join, knowingly encourage or participate in concert any “group” as defined in Section 13(d)(3) of the Exchange Act, with othersrespect to any securities of the Company (other than a “group” solely including other Restricted Persons with respect to any securities of the Company now or hereafter owned by them);
(viii) enter into a voting trust, election arrangement or appointment agreement or subject any securities of the Company to any voting trust, arrangement or representation onagreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), other than granting proxies in solicitations approved by the Board;
(ix) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Company Common Stock held by a Restricted Person to any third party;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to, or to nominate or propose the nomination of any candidate tootherwise comment publicly about, the Board or the removal of Company’s management, strategy, operations, financial results or any member of the Board, or propose any matter to be voted upon by the stockholders of transactions involving the Company or any Subsidiaryof its subsidiaries, except for such statements made with the Company’s prior written consent, that are supportive of the Company’s management and Board, or that are otherwise consistent with the Press Release (as defined below) or the provisions of this Agreement (it being understood that the Restricted Persons shall be free to comment on the merits of any publicly proposed Extraordinary Transaction for the Company or all or substantially all of its assets proposed by a person other than the Sonic Parties that was not encouraged, facilitated or solicited by any Restricted Person);
(ixi) make institute, solicit, assist or join, as a party, any publicly disclosed proposallitigation, public statementarbitration or other proceeding against or involving the Company, public inquiry its Affiliates or public disclosure any of 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 intentionRestricted Person from (A) bringing litigation to enforce the provisions of this Agreement instituted in accordance with and subject to Section 10, plan(B) making counterclaims with respect to any proceeding initiated by, or arrangement on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement (including the Press Release) or the topics covered in the correspondence between the Company and the Restricted Persons prior to the date hereof, or (D) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(xii) enter into any negotiations, agreements (whether written or oral) inconsistent with the foregoing), arrangements or understandings with, or finance or intentionally and deliberately advise, assist or encourage, any third party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(xiii) make or disclose any request or submit any proposal to amend, amend or waive or terminate any provision the terms of this Standstill Agreement (including this clause), in each case publicly or seek permission which would reasonably be expected to or make any result in a public announcement or disclosure of such request or proposal; or
(xiv) take any action that could reasonably be expected to cause or require the Company to make a public disclosure with respect to any provision of the Standstillforegoing; or
provided, that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of (ji) announce an intention upon three business days’ prior written notice by the Sonic Parties following a material breach of this Agreement by the Company (including, without limitation, a failure to doappoint the New Directors to the Board and its committees, as applicable, in accordance with Section 1 or a failure to enter issue the Press Release in accordance with Section 3) if such breach has not been cured within such notice period, (ii) the announcement by the Company of its entry into a definitive agreement with respect to any arrangement Extraordinary Transaction that would result in the acquisition by any person or understanding with others (whether written group of more than 50% of the Company Common Stock then outstanding and which Extraordinary Transaction was not encouraged, facilitated or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do solicited by any of the actions restricted Restricted Persons, (iii) the commencement of any tender or prohibited under clauses exchange offer (aby a person other than the Sonic Parties or their Affiliates and which offer was not encouraged, facilitated or solicited by any of the Restricted Persons) through (j) of this Standstillwhich, or take any action if consummated, would constitute an Extraordinary Transaction that might would result in the Company having to make a public announcement regarding acquisition by any person or group of more than 50% of the matters referred Company Common Stock then outstanding, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer, or (iv) such time as the Company issues a definitive proxy statement or proxy card in clauses (a) through (j) connection with the 2019 Annual Meeting that does not nominate and/or recommend the election of the Class II Designee in all material respects in accordance with the terms of this StandstillAgreement. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 2(c) or otherwise intentionally takeelsewhere in this Agreement shall prohibit or restrict any member of the Board in his or her personal capacity as a director from exercising his or her rights and fiduciary duties as a director of the Company or restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or solicit, or cause or encourage others agents of the Company; provided that any such discussions are limited to take, any action inconsistent with the foregoingcommunications in his personal capacity as a director.
Appears in 1 contract
Sources: Cooperation Agreement (Adverum Biotechnologies, Inc.)
Standstill. Executive agrees that Except for a period the exercise of 18 months from the date Alexza Closing Warrants (as defined in the Amended and Restated Purchase Option Agreement) and the acquisition of ExecutiveAlexza Closing Warrant Shares (as defined in the Amended and Restated Purchase Option Agreement), for so long as the Purchaser and its Affiliates Beneficially Own more than 10% of the Company’s termination of employment for any reasonoutstanding Common Stock, neither Executive the Purchaser nor any of his affiliates or persons or entities acting at his direction or with his assistance willits Affiliates shall, unless specifically invited in writing by without the Board, acting by resolution approved by prior written consent of a majority of all the independent members of the BoardBoard who are not Affiliated with the Purchaser, in any manner, whether directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquiremake, offer effect, initiate, cause or propose to acquireparticipate in (i) any acquisition of Beneficial Ownership of any securities of the Company or any securities of any subsidiary or other Affiliate of the Company, solicit an offer to sell (ii) any acquisition of any assets of the Company or agree to acquireany assets of any subsidiary or other Affiliate of the Company, directly or indirectly, alone or in concert with others, by purchase, (iii) any tender offer, exchange offer, through merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the acquisition Company or control any subsidiary or other Affiliate of another person or entitythe Company, or otherwise, involving any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities assets of the Company or any Subsidiary, securities or assets of any subsidiary or other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities Affiliate of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, (iv) any “solicitation” of “proxies” (as such term is those terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act(“SEC”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCompany;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(db) form, join or any way participate in a “group” within (as defined in the meaning of Section 13(d)(3) of the Securities Exchange Act and the rules promulgated thereunder) with respect to the Beneficial Ownership of any voting securities of the Company or the SubsidiariesCompany;
(ec) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) without limiting any rights of the assetsPurchaser pursuant to Section 5 hereof, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the Board board of directors or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany;
(id) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in require the Company having to make a public announcement regarding any of the types of matters referred to set forth in clauses clause “(a) through (j) )” of this Standstill, sentence;
(e) agree or otherwise intentionally offer to take, or solicit, encourage or cause propose (publicly or encourage others to takeotherwise) the taking of, any action inconsistent with prohibited by clause “(a)”, “(b)”, “(c)” or “(d)” of this sentence;
(f) assist, induce or encourage any other Person to take any action of the foregoing.type prohibited by clause “(a)”, “(b)”, “(c)”, “(d)” or “
Appears in 1 contract
Sources: Purchase Option Agreement (Alexza Pharmaceuticals Inc.)
Standstill. Executive agrees that (a) The Holders, on behalf of themselves and their investment advisor, agree with the Issuer and Holdings that, for a period of 18 months from one year after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis Agreement (the “Standstill Period”), unless specifically invited permitted in writing by the BoardHoldings, acting by resolution approved by a majority of all members of the Boardneither they nor their Affiliates will in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquireeffect, seek, offer or propose (whether publicly or otherwise) 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 entityeffect, or otherwise, any direct cause or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) makeparticipate in, or in any way assist any other person or entity to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:
(A) any acquisition, directly agreement to acquire, proposal or indirectlyoffer to acquire, alone or in concert facilitate the acquisition or ownership of any securities (or beneficial ownership thereof) or all or substantially all of the 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,
(B) any tender or exchange offer, merger or other business combination involving Holdings or any of its Subsidiaries,
(C) any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with othersrespect to Holdings or any of its Subsidiaries, or
(D) any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicitproxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange 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’ stockholdersvote any voting securities of Holdings;
(dii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of Holdings, other than between the Company or Holders and any Affiliates of the SubsidiariesHolders;
(eiii) acquirecall, offer to acquire request the calling of, or agree to acquire, directly otherwise seek or indirectly, alone or assist in concert with others, by purchase, exchange or otherwise, (i) any the calling of a special meeting of the assets, tangible and intangible, shareholders of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiaryother party;
(fiv) arrangemake any public announcement with respect to, or in submit an unsolicited proposal for or offer of (with or without condition), any way participate, directly extraordinary transaction involving Holdings or indirectly, in any financing for the purchase of any voting its securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryassets;
(gv) otherwise act, alone or in concert with others, to seek to propose control the management, Board of Directors or policies of Holdings, except pursuant to the Company or any Subsidiary or any terms 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 SubsidiaryTransaction Documents;
(hvi) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in the Company having force Holdings to make a public announcement regarding any of the types of matters referred to set forth in clauses (a) through above;
(jvii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the 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 their affiliates or associates) will not), directly or indirectly, without the prior written consent of Holdings, take any action that would reasonably be expected to require Holdings to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this Section 6.04 with the Holder or any of its affiliates; provided, however, that the forgoing restrictions in this Section 6.04 shall not 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 (b) the 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 investment advisor, 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 rules and regulations promulgated under Section 13(d) of this Standstillthe Exchange Act, either alone or otherwise intentionally taketogether with each Aggregated Person, or solicit, or cause or encourage others to take, any action inconsistent with of Common Stock representing more than 9.99% of the foregoingtotal issued and outstanding shares of the Common Stock.
Appears in 1 contract
Sources: Exchange Agreement (Pernix Therapeutics Holdings, Inc.)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonCooperation Period, neither Executive nor any of his affiliates or persons or entities each H▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (and under common control) Affiliates and its and their respective Representatives acting at his direction or on their behalf (collectively with his assistance willthe H▇▇▇▇▇▇ Parties, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) to not, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to asprior written consent, invitation, or authorization of or by the “Standstill”):Company or the Board:
(ai) acquire, effect, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly by purchase or indirectlyotherwise, or direct any third party in the acquisition of, record or beneficial ownership of any securities of the Company or rights or options to acquire any securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any securities of the Company, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in the H▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of or aggregate economic exposure to more than 9.99% of the Company Common Stock outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities a meeting of the Company;
’s shareholders or to act by written consent (bor the setting of a record date therefor), (B) make, or in any way participate in, directly or indirectlyseek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others the removal of any member of the Board, or (E) conduct a referendum of shareholders of the Company or engage in a “withhold” or similar campaign; provided that nothing in this clause (ii) (or clause (xv) to the extent applicable to this clause (ii)) will prevent the H▇▇▇▇▇▇ Parties or their Affiliates from taking non-public actions in a confidential manner in furtherance of privately identifying any director candidate in connection with the first annual meeting of shareholders of the Company following the Cooperation Period;
(iii) make any request for any shareholder list or similar materials or other books and records of the Company or any of its subsidiaries, whether pursuant to Section 624 of the New York Business Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(iv) (A) engage in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated SEC but including, for the avoidance of doubt, solicitations of ten (10) or fewer shareholders which would otherwise be excluded from the definition of “solicitation” pursuant to Section 14 Rule 14a-2(b)(2) promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities directors of the Company or any Subsidiary;
other matter or proposal relating to the Company or (cB) initiate, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersconsents;
(dv) formdisclose to any third party, join either publicly or any way participate in a “group” within manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a shareholder vote during the meaning Cooperation Period (it being understood that instructing third parties to implement such votes or consents in a ministerial manner in accordance with this Agreement would not be a violation of Section 13(d)(3) this provision), except that such disclosures may be made to the extent legally required or permitted by the prior written consent of the Exchange Act with respect to any voting securities of the Company or the SubsidiariesCompany;
(evi) acquiremake or submit any proposal for, or offer to acquire of (with or agree to acquirewithout conditions), directly or indirectly, either alone or in concert with others, any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, restructuring, reorganization, liquidation, separation, dissolution, dilutive financing (including, without limitation, any dilutive “PIPE” capital-raising issuance transaction or any transaction requiring shareholder consent or approval) or other extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably be expected to result in or require public disclosure (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares or otherwise participating in any Extraordinary Transaction, in each case on the same basis as other shareholders of the Company);
(vii) make any proposal, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to (A) any change in the number, term or identity of directors or the filling of any vacancies on the Board other than as provided under Section 1, (B) any change in the capitalization or capital allocation policy of the Company (including, for the avoidance of doubt, capital allocation policies relating to share repurchases or dividends), (C) any other change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Amended Certificate of Incorporation or the Amended and Restated By-Laws of the Company (collectively, the “Organizational Documents”), (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) knowingly encourage or advise any third party or knowingly assist any third party in encouraging or advising any other person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any securities of the Company or (B) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement);
(ix) form, join, knowingly encourage or knowingly participate in or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act, with respect to the Company or any of its securities, other than solely a group consisting solely of the H▇▇▇▇▇▇ Parties and any of their Affiliates;
(x) enter into a voting trust, arrangement or agreement, or subject any securities of the Company to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Affiliates of the H▇▇▇▇▇▇ Parties or (C) granting proxies to the Company in solicitations approved by the Board;
(xi) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(xii) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Company Common Stock held by a Restricted Person to any third party;
(ixiii) make any disclosure, communication, announcement or statement, either publicly or in a manner reasonably likely to result in or require public disclosure, regarding any intent, purpose, place or proposal with respect to the Board, the Company, its management, policies or affairs, strategy, operations, financial results, any of its securities or assets or this Agreement, except in a manner consistent with the assetsPress Release and Disclosure (each as defined below) and the other provisions of this Agreement;
(xiv) institute, tangible and intangiblesolicit, assist or join, as a party, any litigation, arbitration, or other proceeding against or involving the Company, its Affiliates or any current or former directors or officers of the Company or any Subsidiary of its Affiliates (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 9, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising any statutory appraisal rights, or (iiE) direct responding to or indirect rightscomplying with a validly issued legal process;
(xv) enter into any negotiations, warrants agreements (whether written or options oral), arrangements, or understandings with any third party to acquire take any assets action that the Restricted Persons are prohibited from taking pursuant to this Section 2(b); or
(xvi) make any request or submit any proposal to amend or waive the terms of this Section 2(b) (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal by the Company or any Subsidiary;
of the Restricted Persons. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (fincluding, but not limited to, the restrictions in this Section 2(b)) arrangewill prohibit or restrict any of the Restricted Persons from (A) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental or regulatory authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by the Restricted Person), (B) granting any liens or encumbrances on any claims or interests in any way participatefavor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (C) negotiating, evaluating and/or trading, directly or indirectly, in any financing for index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the purchase of any voting performance of, but not primarily consist of, securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or (D) providing its views privately to members of the Board or the Company’s Chief Executive Officer and financial or legal advisors that have been identified by the Chief Executive Officer to the H▇▇▇▇▇▇ Parties as appropriate contacts, so long as such communication would not reasonably be expected to require or result in any Subsidiary;
(g) otherwise act, alone public disclosure of such communications or in concert with others, to seek to propose to the content thereof by the Company or any Subsidiary of the Restricted Persons. Furthermore, nothing in this Agreement shall prohibit or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies restrict M▇. ▇▇▇▇▇▇ from exercising his rights and fiduciary duties as a director of the Company or any Subsidiaryin his capacity as a director of the Company, or otherwise seek, alone or restrict him from engaging in concert with others, election or appointment to or representation on, or to nominate or propose the nomination discussions solely among other members of any candidate to, the Board and/or management, advisors, Representatives or the removal of any member agents of the Board, or propose Company; provided that any matter such discussions are limited to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal communications in his capacity as a director and conducted privately in a manner that is not reasonably likely to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a or require public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingdisclosure.
Appears in 1 contract
Standstill. Executive Voce agrees that for a period of 18 months from that, during the date of Executive’s termination of employment for Standstill Period it will not, and it will cause its respective Affiliates, Associates and agents and any reason, neither Executive nor any of other persons acting on his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest engage in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to 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’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting 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 Subsidiaries;
Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (eother than Voce and its Affiliates) acquirewould beneficially own, offer 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 agree quarterly report of the Company filed with the SEC pursuant to acquireSection 13 or 15(d) of the Exchange Act), directly 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 indirectly, alone or in concert with others, by purchase, exchange or otherwiseconstitute a breach of this Section 8, (iiii) any tender offer or exchange offer, merger, change of the assetscontrol, tangible and intangible, of acquisition or other business combination involving the Company or any Subsidiary of its subsidiaries or (iiiv) direct any recapitalization, restructuring, liquidation, dissolution 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 other extraordinary transaction with others, to seek to propose respect to the Company or any Subsidiary or of its subsidiaries (any of their respective stockholders the transactions or make any public statement with respect events described in (i) through (iv) above are referred to any mergeras a “Sale Transaction”), business combinationunless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving that this paragraph shall not require Voce to vote in favor of a Sale Transaction that was approved by the Company or any SubsidiaryBoard;
(h) seekpublicly disclose, alone or in concert with otherscause or facilitate the public disclosure (including, to control, change or influence the managementwithout limitation, the Board filing of any document or policies report with the SEC or any other governmental agency or any disclosure to any journalist, member of the Company media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any Subsidiaryamendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seekseek (in any manner that would require public disclosure by Voce or its Affiliates or Associates) to obtain any waiver, alone or in concert with others, election or appointment to or representation onconsent under, or to nominate or propose the nomination amendment of any candidate to, the Board or the removal provision of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiarythis Agreement;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit (x) Plants from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any Sale Transaction that has been approved by a majority of the Board and has been announced by the Company, Voce from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies.
Appears in 1 contract
Sources: Board Appointment Agreement (Destination Maternity Corp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer acquire beneficial ownership in excess of 15% of the outstanding shares of Common Stock (based on the latest annual or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary15(d) of the Exchange Act), other than the acquisition in of equity-based compensation pursuant to Section 9 hereof and the aggregate exercise of less than oneany options or conversion of any convertible securities comprising such equity-half of one percent of the outstanding voting securities of the Companybased compensation;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or any New Director or any of their respective Affiliates as a result of this Agreement;
(d) engage in discussions with other shareholders of the SubsidiariesCompany, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (fother than the Shareholder Group and their Affiliates) arrangewould beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group, to result in any way participatetransferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 7, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or any New Director to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of any intent, consolidationpurpose, saleplan or proposal to obtain any waiver, tender offeror consent under, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 6 hereof or this Section 7, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of publicly disparage the Company or any Subsidiarymember of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise seek, alone or in concert with others, election or appointment to or representation onotherwise, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(k) take or cause or induce or assist others to take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit (x) any of the New Directors from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or make required in order to comply with his fiduciary duties as a director of the Company or disclose (y) the Shareholder Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any request shares or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement proxies with respect to any provision Sale Transaction that has been approved by a majority of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of Board and has been announced by the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Sources: Shareholder Agreement (Emcore Corp)
Standstill. Executive agrees that for a For the period of 18 (the "Standstill Period") commencing on the date hereof and ending on the earlier of: (i) the date which is six months from the date of Executive’s termination this Agreement; and (ii) the date a person not affiliated with Purchaser or its associates (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) acquires, announces an intention to acquire or proposes to acquire in an transaction described in clauses (a) through (j) below not approved by the Board of employment for any reasonDirectors of the Company; Purchaser will not, neither Executive nor any of his and will cause its associates (as such term is defined under the Exchange Act) and its affiliates or persons or entities acting at his direction or with his assistance willwhom it controls (as such term is defined under the Exchange Act) not to, unless specifically invited expressly requested in writing writing, in advance, by the Board, acting by resolution approved by Company or pursuant to a majority of all members of written agreement with the BoardCompany, directly or indirectly, in any manner (the obligations pursuant whatsoever: acquire, announce an intention to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or donate or agree to acquire, or enter into any arrangement or undertaking to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, gift or otherwise, any record or direct or indirect beneficial ownership interest in any voting securities or any assets of the Company or any direct or indirect rights, warrants or options to acquire, acquire record or direct or indirect beneficial ownership of any securities convertible into or exchangeable for, any voting securities assets of the Company (an "Acquisition"), if such Acquisition would cause Purchaser to beneficially own 10% or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent more of the outstanding voting equity securities of the Company;
(b) ; make, propose to make, or participate in any merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company; solicit, make, effect, initiate, cause or, in any way participate inin (other than by granting a proxy to management representatives), directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from any holders of any securities of the proxy rules, Company; call or seek to advisehave called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, encourage alone or in concert with others, to advise or influence in any manner whatsoever 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 proposalCompany; 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 participate in, or otherwise encourage the formation of, any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the record or beneficial ownership of any voting securities of the Company or the Subsidiaries;
(e) acquireCompany; arrange, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangefacilitate, or in any 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 of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
of its subsidiaries; (g1) otherwise act, alone directly, or in concert with othersindirectly, to seek to propose control, advise, direct or influence the management, Board of Directors (including any individual members thereof), stockholders, policies or affairs of the Company or any subsidiary thereof; provided, however, that nothing contained herein shall prevent Purchaser from freely communicating privately with management and the directors Purchaser's observations, recommendations and preferences with respect to the Company, its operations and policies; or (2) disclose an intent, purpose, plan or proposal with respect to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) subsidiary thereof inconsistent with the foregoingprovisions of this letter agreement, including, without limitation, any intent, purpose or make plan that requires the Company to waive the benefit of or disclose any request or proposal to amend, waive or terminate amend any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillletter agreement; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters types set forth in clauses (a) through (g) of this Section 6.1; 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 take, any action referred to in clauses (a) through (j) g), inclusive, of this StandstillSection 6.1; assist, induce or encourage (other than by granting a proxy to management representatives), or otherwise intentionally takeenter into discussions, negotiations, arrangements or solicit, or cause or encourage others to takeunderstandings with, any person to take any action inconsistent with of the foregoingtype referred to in clauses (a) through (i), inclusive, of this Section 6.1. The expiration of the Standstill Period shall not terminate or otherwise affect any of the other provisions of this letter agreement.
Appears in 1 contract
Standstill. Executive The ▇▇▇▇▇▇▇ Group agrees that that, for a the period of 18 months from commencing on the date of Executivethis Agreement and ending on the earlier of (i) the 30th calendar day preceding the opening of the nomination window for submission of director nominees at the Company’s termination 2016 Annual Meeting and (ii) a material breach by the Company of employment for any reasonits obligations under this Agreement which is not cured within 5 business days after written notice from the ▇▇▇▇▇▇▇ Group (the "Standstill Period"), neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates not to, directly or indirectly, in any manner (the obligations other than pursuant to this Section 13 being referred to as6(c), the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, :
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by purchase, tender offer, exchange offer, through the acquisition Securities and Exchange Commission (the "SEC") under the Exchange Act or control otherwise) or any notice of another person nomination or entityother business for consideration, or otherwise, nominate any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options candidate for election to acquire, or securities convertible into or exchangeable for, any voting securities the Board (including by way of the Company or any SubsidiaryRule 14a-11 of Regulation 14A), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyas expressly permitted by this Agreement;
(bii) make, or in any way participate engage in, directly or indirectly, alone any "solicitation" (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a "participant in concert with others, any “a solicitation” " (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s stockholders, or its Subsidiaries’ stockholders or others in connection with the solicitation make a request for a list of proxies or consents or matters presented to the Company’s stockholders or its Subsidiaries’ stockholdersfor any books and records of the Company;
(div) form, join in or in any other way participate in a “"partnership, limited partnership, syndicate or other group” " within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) except as specifically provided in Section 1 and Section 2 of this Agreement, 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 the Subsidiariesany rights or options to acquire any such assets or business from any person;
(eviii) other than at the direction of the Board, seek, propose, or make any statement (other than to one or more members of the Board or management or its advisors or agents (including, without limitation, any firm engaged by the CDC)) with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, beneficial ownership of any (iA) interests in any of the assets, tangible and intangible, Company’s indebtedness or (B) Common Stock of the Company or any Subsidiary or representing in the aggregate (iiamongst the ▇▇▇▇▇▇▇ Group and its Affiliates) direct or indirect rightsin excess of 9.9% of the Company’s outstanding Common Stock; provided, warrants or options however, nothing herein shall prevent the ▇▇▇▇▇▇▇ Group from confidentially seeking a waiver to acquire any assets in excess of 9.9% of the Company or any SubsidiaryCompany’s outstanding Common Stock;
(fx) arrangedisclose publicly, or privately in any way participatea manner that could reasonably be expected to become public, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, ;
(xi) take any action challenging the validity or make or disclose enforceability of any request or proposal to amend, waive or terminate any provision provisions of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillSection 3; or
(jxii) announce an intention to do, or to enter into any agreement, arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do concerning any of the actions restricted foregoing (other than this Agreement) or prohibited under clauses (a) through (j) of this Standstill, encourage or take solicit any action that might result in the Company having person to make a public announcement regarding undertake any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingforegoing activities.
Appears in 1 contract
Sources: Settlement Agreement (Sandell Asset Management Corp)
Standstill. Executive If the Acquisition Closing occurs, each Novalon Stockholder hereby covenants and agrees that for a period that, so long as such Novalon Stockholder or any of 18 months from its affiliates (as such term is defined in the date Exchange Act) owns of Executive’s termination record or beneficially (as such term is defined in the Exchange Act) any of employment for any reasonthe Consideration Shares, neither Executive such Novalon Stockholder nor any of his its affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall, directly or indirectly, unless authorized in writing by Cubist, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyCubist;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCubist;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join or in any way participate in a “"group” " within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the SubsidiariesCubist;
(eiv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (iA) any of the assets, tangible and or intangible, of the Company Cubist or any Subsidiary of its affiliates or (iiB) direct or indirect rights, warrants or options to acquire any assets of the Company Cubist or any Subsidiaryof its affiliates, except for such assets as are then being offered for sale by Cubist, or any of its affiliates;
(fv) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company Cubist or any Subsidiaryof its affiliates;
(gvi) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary Cubist or any of their respective its stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company to or any Subsidiary;
(h) seekwith Cubist or otherwise see, alone or in concert with others, to control, change or influence the management, the Board board of directors, or policies of Cubist or nominate any person as a director who is not nominated by the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCubist; or
(jvii) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company Cubist having to make a public announcement regarding any of the matters referred to in clauses (ai) through (jvi) of this StandstillSection 6.8, or otherwise intentionally takeannounce an intention to do, or solicit, enter into any agreement or cause understanding or encourage discussions with others to takedo, any action inconsistent with of the foregoingactions restricted or prohibited under such clauses (i) through (vi).
Appears in 1 contract
Sources: Acquisition Option Agreement (Cubist Pharmaceuticals Inc)
Standstill. Executive agrees that for For a period of 18 months five years from the date Closing Date (as such term is defined in Section 2(a)(i) of Executive’s termination of employment for any reasonthe Stock Purchase Agreement), neither Executive nor LDC shall not, and shall not permit any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates to, directly or indirectly, in any manner (i) without the obligations pursuant to this Section 13 being referred to as, prior written consent of the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersCompany, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, agree to acquire or securities convertible into or exchangeable for, offer to acquire beneficial ownership of any voting securities of the Company or direct or indirect rights or options to acquire such beneficial ownership (including, without limitation, any Subsidiary, other than the voting trust certificates representing such securities) if such acquisition would result in the aggregate beneficial ownership by LDC and all Affiliates of less than one-half LDC of one percent voting securities having voting power equal to or in excess of 15% of the outstanding then aggregate voting securities power of the Company;
, (bii) enter, propose to enter into, solicit or support any merger or business combination or change of control or other similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the business or assets of the Company or any of its subsidiaries other than in the ordinary course of business, (iii) initiate or propose any matter for submission to a vote of the shareholders of the Company or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is terms are used in the proxy rules of promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of SEC under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise or influence any person with respect to the voting of, the Common Stock or any other voting securities of the Company or request or take any action to obtain any list of shareholders of the Company for such purposes, (iv) form, join or in any way participate in any group (other than a group composed solely of LDC and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to the Common Stock or any other voting securities of the Company that would be required under Section 13(d) of the Exchange Act to file a Schedule 13D with respect to such voting securities, (v) deposit any shares of Common Stock or any other voting 21 21 securities of the Company in a voting trust or enter into any voting agreement or arrangement with respect thereto, (vi) seek representation on the Board (other than as contemplated by Section 7(b) of the Stock Purchase Agreement), the removal of any directors from the Board or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 3.2, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of the foregoing, (x) assist, advise, encourage or influence in any manner whatsoever negotiate with any person with respect to, or entity seek to do, any of the foregoing or (xi) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company. Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its Affiliates from responding to any inquiries from any shareholders of the Company as to LDC's or any such Affiliate's intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by LDC or any Subsidiary;
(c) initiate, propose or “solicit” (such Affiliate so long as such term response is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate consistent with the Company’s terms of this Agreement, (ii) prohibit the purchase or its Subsidiaries’ stockholders other acquisition of beneficial ownership of Common Stock or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any other voting securities of the Company in compliance with Section 3.2(i) or (iii) restrict the Subsidiaries;
(eright of any director on the Board designated by LDC as contemplated by Section 7(b) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, Stock Purchase Agreement to vote on any matter as such designee believes appropriate in light of his duties as a director of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets the manner in which such designee may participate in his capacity as a director of the Company in deliberations or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase discussions at meetings of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination as a member of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingcommittee thereof.
Appears in 1 contract
Sources: Registration Rights Agreement (S a Louis Dreyfus Et Cie Et Al)
Standstill. Executive (a) PNC covenants to and agrees that for a period of 18 months from with the date of ExecutiveCompany that, without the Company’s termination of employment for any reasonprior written consent, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectlyindirectly (including by way of cooperating or coordinating with any third party with respect to the following actions or by encouraging, in assisting, advising or facilitating the taking of any manner (of the obligations pursuant to this Section 13 being referred to as, the “Standstill”following actions by any third party):
(ai) acquire, offer In any way acquire Beneficial Ownership of any Voting Securities or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire Beneficial Ownership of any Voting Securities other than those acquired by PNC from the Company pursuant to the terms of this Agreement or pursuant to a stock split, stock dividend or securities convertible into similar corporate action initiated by the Company; provided that PNC and its Affiliates may acquire Beneficial Ownership of additional Voting Securities to the extent that such acquisition would not result in PNC and its Affiliates owning more than 9.9% of the aggregate voting power of the Voting Securities.
(ii) Seek or exchangeable forpropose to influence, any voting securities advise, change or control the management, Board of Directors, governing instruments or policies or affairs of the Company by way of any public communication or communication with any Subsidiary, Person other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) , or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are defined or used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies to vote any Voting Securities or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence become a “participant” 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 “solicitelection contest” (as such term is terms are defined and 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 14a-11 under the Exchange Act, ) with respect to Voting Securities or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any exercise voting rights associated with such stockholder proposal; or otherwise communicate Voting Securities other than in accordance with the recommendation of the Board of Directors of the Company’s ; or
(iii) Make a request to amend or waive any provision of this Section 4.04(a); provided, however, that, the restrictions set forth in this Section 4.04(a) shall not apply to any acquisition of Voting Securities by PNC or its Subsidiaries’ stockholders or others Affiliates in connection with the solicitation of proxies PNC and its Affiliates’ ordinary course fiduciary activities or consents or matters presented to the Company’s ordinary course activities of PNC or its SubsidiariesAffiliates’ stockholders;affiliated proprietary and third party fund and asset management activities or affiliated brokerage and trading or financing activities; provided, further, that the restrictions set forth in this Section 4.04(a) shall cease to apply to any Voting Securities sold or transferred by PNC to any person other than an Affiliate of PNC.
(db) formFor purposes of this Section 4.04, join a Person shall be deemed to “Beneficially Own” any securities of which such Person or any way participate in such Person’s Affiliates is considered to be a “groupBeneficial Owner” within the meaning of Section 13(d)(3) of under Rule 13d-3 under the Exchange Act with respect to as in effect on the date hereof or of which such Person or any voting securities of the Company such Person’s Affiliates or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquireassociates, directly or indirectly, alone has the right to acquire (whether such right is exercisable immediately or only after the passage of time or upon the satisfaction of conditions) pursuant to any agreement, arrangement or understanding (whether or not in concert with others, by purchasewriting) or upon the exercise of conversion rights, exchange or otherwiserights, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire options, or otherwise and “Voting Securities” means at any assets time shares of any class of capital stock of the Company that are then entitled to vote generally in the election of directors or any Subsidiary;securities that are convertible into, or exchangeable or exercisable for, any such shares.
(fc) arrange, or The obligations of PNC and its Affiliates under Section 4.04(a) shall continue 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 full force and effect until such time as PNC and its Affiliates shall Beneficially Own less than one percent (1%) of the Company or Common Stock then outstanding (disregarding any Subsidiary;
(g) otherwise act, alone or shares of Common Stock that are held in concert with others, to seek to propose to the Company or any Subsidiary or any context 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 PNC and its Affiliates’ ordinary course fiduciary activities or the removal ordinary course activities of any member of the Board, PNC or propose any matter to be voted upon by the stockholders of the Company its Affiliates’ affiliated proprietary and third party fund and asset management activities or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry affiliated brokerage and trading or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingfinancing activities).
Appears in 1 contract
Sources: Securities Purchase Agreement (First Niagara Financial Group Inc)
Standstill. Executive agrees that for At no time during the Standstill Period (as hereinafter defined) (so long as Isolagen and Isolagen Technologies are making the payments required by the Agreement) shall Individual (except with the approval or consent of the Board as evidenced by a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing resolution duly adopted by the Board), acting by resolution approved by a majority of all members of the Boardin any manner, directly or indirectly, in do, or cause or permit any manner (Person controlled by Individual to do, any of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):following:
(ai) acquire, offer solicit proxies or propose to acquire, solicit an offer to sell consents or agree to acquire, directly or indirectly, alone or become a “participant” in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents with respect to vote, whether subject securities of Isolagen with regard to or exempt from the proxy rules, or any matter;
(ii) seek to advise, encourage or influence any Person with respect to the voting of any securities of Isolagen, or induce, attempt to induce or in any manner whatsoever assist any other Person in initiating any stockholder proposal or tender or exchange offer for securities of Isolagen or any change of control of Isolagen, or for the purpose of convening a stockholders’ meeting of Isolagen; provided, however, that Individual may tender his Capital Stock in any such tender or exchange;
(iii) acquire or agree to acquire, by purchase or otherwise, any class of equity securities of any entity that is publicly disclosed (by filing with the SEC or otherwise), or is otherwise known, to be the beneficial owner of more than 5% of the outstanding Capital Stock or any class or series thereof if, upon consummation of such acquisition, Individual or the Shareholder Group would (in the aggregate) own more than 5% of any class of equity securities of such entity;
(iv) effect or seek to effect or make any offer or proposal or any public announcement relating to a tender or exchange offer for securities of Isolagen or any of its subsidiaries or a merger, business combination (or other similar transaction that would result in a change of “control,” as defined in Rule 405 of the Securities Act of 1933), sale of assets, recapitalization, restructuring, liquidation, dissolution, consolidation or other extraordinary corporate transaction between Individual or the Shareholder Group and Isolagen or any subsidiary of Isolagen;
(v) deposit any Capital Stock of Isolagen in a voting trust or subject any Capital Stock of Isolagen to any arrangement or agreement with respect to the voting of securities of Isolagen (other than with a Family Member or a trust controlled by the Individual);
(vi) take any action which would require Isolagen to make a public announcement regarding the types of matters set forth in clauses (i) through (v) of this Section 2(a);
(vii) form, join or in any way participate in a partnership, limited partnership, syndicate or other group, for the purpose of (A) acquiring, holding or voting or disposing of securities of Isolagen, or (B) taking any other actions restricted or prohibited under clauses (i) through (vi) of this Section 2(a);
(viii) participate with, advise, assist, encourage or enter into any discussions, negotiations, arrangements or understandings with any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;foregoing; or
(cix) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or disclose 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 intention with respect to any voting securities of the Company or the Subsidiaries;
(e) acquireforegoing; provided, offer however, nothing in this Exhibit E is intended to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any prohibit Individual from voting his shares of the assets, tangible and intangible, Capital Stock at meetings 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 Isolagen (including through consents) or selling his shares of Capital Stock in the Company or any Subsidiary;
(i) make any publicly disclosed proposalopen market as permitted by law, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with as long as he continues to abide by the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision restrictions of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 2(a).
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from Section 4.1. During the date of Executive’s termination of employment for any reasonSignificant Holder Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardShareholder shall not, directly or indirectly, in any manner (and shall cause its Group Members directly or indirectly not to, without the obligations pursuant to this Section 13 being referred to asprior written consent of, or waiver by, the “Standstill”):Company:
(a) subject to Section 4.2, acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal (including any private proposal to the Company or the Board of Directors) to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct securities (including any Equity Securities or indirect beneficial interest in any voting securities Voting Securities, but excluding debt securities) or Derivative Instruments, or direct or indirect rightsrights to acquire any securities (including any Equity Securities or Voting Securities, warrants but excluding debt securities) or options to acquireDerivative Instruments, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities Subsidiary of the Company, or any securities (including any Equity Securities or Voting Securities, but excluding debt securities) or indebtedness convertible into or exchangeable for any such securities;
(b) makeoffer, or seek to acquire, or participate in any way participate inacquisition of assets or business of the Company and its Subsidiaries;
(c) conduct, directly fund or indirectly, alone or otherwise become a participant in concert with others, any “solicitationtender offer” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14D under the Exchange Act) of proxies involving Equity Securities, Voting Securities or consents to vote, whether subject to or exempt from the proxy rulesany securities convertible into, or exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the Board of Directors;
(d) otherwise act in concert with others to seek to advise, encourage control or influence the Board of Directors or shareholders of the Company or its Subsidiaries; provided that nothing in this clause (d) shall preclude the Shareholder, its Group Members, or its Representatives, from engaging in discussions with the Company or its Representatives or the Shareholder’s designated and/or nominated director to the Board of Directors pursuant to Section 6.2 from engaging in any manner whatsoever activities in his or her capacity as such designated and/or nominated director;'
(e) make or join or become a participant (as defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or encourage) any person “solicitation” of “proxies” (as such terms are defined in Regulation 14A as promulgated by the SEC), or entity consent to vote any Voting Securities or any of the voting securities of any Subsidiaries of the Company (including through action by written consent), or otherwise knowingly advise or influence any Person with respect to the voting of any voting securities of the Company or any Subsidiaryits Subsidiaries;
(cf) initiatemake any public announcement with respect to, or solicit or submit a public proposal for, or publicly propose (with or without conditions) any merger, consolidation, business combination, “solicittender offer” (as such term is used in Regulation 14D under the proxy rules Exchange Act), recapitalization, reorganization, purchase or license of a material portion of the Securities and Exchange Commission) stockholders assets, properties, securities or indebtedness of the Company or any Subsidiary for of the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange ActCompany, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with other similar extraordinary transaction involving the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, Subsidiary of the Company or any Subsidiary of its securities or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangeindebtedness, or in enter into any way participatediscussions, directly negotiations, arrangements, understandings or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) with any other Person regarding any of the foregoing;
(g) call or seek to call a meeting of shareholders of the Company or initiate a shareholder proposal or meeting agenda item for action of the Company’s shareholders, or, except as contemplated by Article 6, seek election or appointment to or to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors;
(h) form, join, become a member or otherwise participate in a Group (other than with any of its Group Members) with respect to the securities of the Company or any of its Subsidiaries;
(i) deposit any Voting Securities in a voting trust or similar Contract or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Shareholder or any of its Affiliates or wholly-owned Subsidiaries, or (ii) in accordance with Section 3.1);
(j) publicly make any proposal or publicly disclose any plan, or cause or authorize any of its and their directors, officers, employees or agents to publicly make any proposal or publicly disclose any plan on its or their behalf, inconsistent with the foregoingforegoing restrictions;
(k) knowingly take any action or cause or authorize any of its and their directors, officers, employees or make agents to take any action on its or their behalf, that would reasonably be expected to require the Company or any of its Subsidiaries to publicly disclose any request of the foregoing actions or proposal to amendthe possibility of a business combination, waive merger or terminate other type of transaction or matter described in this Section 4.1;
(l) knowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party in furtherance of any of the foregoing; or
(m) directly or indirectly, contest the validity of, any provision of this Standstill Section 4.1 (including this subclause) or seek permission Section 3.1 (whether by legal action or otherwise).
Section 4.2. Notwithstanding anything herein to or make any public announcement with respect the contrary, the prohibitions in Section 4.1 shall not apply to any provision the activities of the StandstillShareholder or any of its Group Members in connection with:
(a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board of Directors; or
(jb) announce acquisitions made in connection with a transaction or series of related transactions in which the Shareholder or any of its Group Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the time of the consummation of such acquisition.
Section 4.3. Notwithstanding anything herein to the contrary, the prohibitions in Section 4.1 shall immediately terminate, and the Shareholder and its Affiliates may engage in any of the activities specified in Section 4.1, in the event that:
(a) the Company publicly announces that it has entered into an agreement with any Person or Group which provides for (i) the acquisition by such Person or Group of more than 50% of the Common Stock or all or a majority of the assets of the Company or (ii) any merger, consolidation or similar business combination, including as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change; involving the Company and such Person or Group (each, a “Third Party Acquisition”);
(b) the Board of Directors recommends that shareholders of the Company tender their shares or vote in favor of a Third Party Acquisition; or
(c) any Person or Group (i) acquires Beneficial Ownership of more than 50% of the outstanding Common Stock, (ii) makes an offer which if fully subscribed would result in such Person or Group acquiring Beneficial Ownership of more than 50% of the outstanding Common Stock of the Company, or (iii) publicly announces an intention to doengage in a Third Party Acquisition, and, in the case of clause (ii) or (iii), the Company does not, within ten (10) Business Days of public announcement thereof by such person or group, publicly oppose and/or recommend to enter into any arrangement its stockholders that they not accept such offer or understanding with others support such Third Party Acquisition.
(whether written or orald) to do, or to finance, intentionally advise, enable, assist or encourage others to do Notwithstanding any of the actions restricted foregoing, nothing in this Agreement shall restrict (i) the Shareholder’s or prohibited under clauses its Affiliates’ Representatives from effecting or recommending transactions in securities
(aA) through in the ordinary course of its business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner and (jB) not at the direct or request of this Standstillthe Shareholder or any of its Affiliates, and (ii) the director designated by the Shareholder from exercising his or take her fiduciary duties as a member of the Board of Directors.
Section 4.4. Notwithstanding anything herein to the contrary, the Shareholder and its Group Members may (i) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire Shares (and any securities (including any Equity Securities or Voting Securities, but excluding debt securities) convertible into or exchangeable for Shares) and Derivative Instruments, if, immediately following such acquisition, the collective Beneficial Ownership of Shares of the Shareholder and its Group Members, as a group, would not exceed the Standstill Level and (ii) make a non-public proposal or other communication to the Board of Directors regarding any action described in Section 4.1 so long as the Shareholder or such Group Member reasonably believes that might such offer will not result in the Company having or Shareholder Parent being required by applicable Law to make a public announcement regarding any disclose the making of such offer promptly following the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingmaking thereof.
Appears in 1 contract
Standstill. Executive agrees that for a period Until the Termination Date (subject to the Company having complied with the first sentence of 18 months from Section 1), the date Circumference Group will not, and will cause each of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates and Associates to not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(ai) (A) acquire, offer or propose to acquireoffer, solicit an offer to sell seek or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining or entityforming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act (as defined below)), through swap or hedging transactions, other Synthetic Positions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership (including notional shares associated with any Derivatives or other Synthetic Positions) 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 Circumference Group or any of its Affiliates and Associates holds, directly or indirectly, in excess of 9.9% of the Voting Securities, or (B) acquire, or offer, seek or agree to acquire, whether by purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities indebtedness of the Company;
(bii) make(A) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board or (unless the Board recommends in favor of such removal) take any action in respect of the removal of any director, (B) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or the election or removal of any director (in each case other than pursuant to Section 1), (C) 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, (D) request, or knowingly initiate, knowingly encourage or participate in any way participate inrequest, directly to call a Stockholder Meeting, (E) publicly seek to amend any provision of the Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws (the “Bylaws”) or indirectlyother governing documents of the Company (each as may be amended from time to time), alone or in concert (F) take any action similar to the foregoing with othersrespect to any subsidiary of the Company;
(iii) solicit any proxy, consent or other authority to vote of stockholders (other than from Circumference Group and its Affiliates and Associates with respect to shares of Voting Securities which the Circumference Group or such Affiliate or Associate has the right or ability to vote) or conduct any other referendum (binding or non-binding) (including any “solicitationwithhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) in, or knowingly assist, advise, initiate, knowingly encourage any person (other than the Company or, solely with respect to shares of proxies Voting Securities which the Circumference Group or consents such Affiliate or Associate has the right or ability to vote, whether subject the members of the Circumference Group and its Affiliates and Associates) to or exempt from the proxy rules, conduct (or seek to adviseinfluence any person other the Company or its Affiliates or Associates in the conduct of), encourage any “solicitation” of any proxy, consent or other authority to vote any Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the foregoing shall not restrict the Circumference Group or its Affiliates or Associates from stating how they intend to vote with respect to an Extraordinary Transaction, if any, that has been publicly submitted for the approval of the Company’s stockholders and the reasons therefor;
(iv) (A) grant any proxy, consent or other authority to vote with respect to any matters for any Stockholder Meeting or (B) deposit any securities of the Company in any manner whatsoever voting trust or subject any person securities of the Company to any arrangement or entity agreement with respect to the voting of any voting such securities of the Company Company, in each case of clauses (A) and (B) other than (1) customary brokerage accounts, margin accounts, prime brokerage accounts and similar accounts (in each case so long as the Circumference Group or its Affiliates or Associates retains control with respect to the securities deposited in such accounts), (2) granting any Subsidiaryproxy, consent or other authority to vote in any solicitation approved by the Board and consistent with the recommendation of the Board, and (3) granting any proxy, consent or other authority to vote in any solicitation in connection with any matter for which the Circumference Group or its Affiliates or Associates retains voting discretion pursuant to, and in accordance with, Section 2(b);
(cv) initiateknowingly encourage, propose advise or seek to influence any person, or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “solicitwithhold,” (as “vote no,” or similar campaign), in each case other than such term encouragement, advice or influence that is used consistent with the Board’s recommendation in the proxy rules of the Securities and Exchange Commission) stockholders of the Company connection with such matter or any Subsidiary otherwise in connection with an Extraordinary Transaction that has been publicly submitted 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 stockholders; provided, however, that the foregoing shall not restrict the Circumference Group or its Subsidiaries’ stockholders Affiliates or others in connection Associates from stating how they intend to vote with respect to an Extraordinary Transaction, if any, that has been publicly submitted for the solicitation approval of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersstockholders and the reasons therefor;
(dvi) without the prior written approval of the Company, 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, propose, suggest or recommend publicly (or in a manner such that the Circumference Group is required under applicable law, rule or regulation to disclose publicly) or participate in, effect or seek to effect any Extraordinary Transaction or knowingly encourage any other third party to participate in, effect or seek to effect any Extraordinary Transaction; provided, that nothing in this Section 2(a)(vi) shall be interpreted to prohibit the Circumference Group from (1) proposing, suggesting or recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Circumference Group (and is made by the Circumference Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Circumference Group or any other person), (2) stating how they intend to vote with respect to an Extraordinary Transaction, if any, that has been publicly submitted for the approval of the Company’s stockholders and the reasons therefor or (3) tendering shares, receiving consideration or other payment for shares, or otherwise participating in any publicly announced Extraordinary Transaction on the same basis as other stockholders of the Company;
(vii) form, join join, encourage the formation of, or in any way participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities Voting Securities (other than a group that includes all or some of the Company members of the Circumference Group or its Affiliates or Associates, but does not include any other entities or persons that are not members of the SubsidiariesCircumference Group as of the date hereof; provided that nothing herein shall limit the ability of an Affiliate of the Circumference 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);
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iviii) make any or publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose advance any request or proposal to amend, modify or waive or terminate any provision of this Standstill Agreement, or seek permission (other than in connection with any legal proceeding that was not initiated by Circumference Group or its Affiliates or Associates) take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement; provided that the Circumference Group may make confidential requests to the Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Circumference Group and is made by the Circumference Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Circumference Group or any other person;
(ix) 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 General Corporation Law of the State of Delaware (the “DGCL”) or any other statutory or regulatory provisions providing for stockholder access to books and records; provided that Fox shall not be prohibited from making any such request in his capacity as a director of the Company;
(x) make any public announcement proposal with respect to (A) any provision change in the number or identity of directors of the Standstill; orCompany or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement or (B) any other change to the Board or the Company’s management, or corporate or governance structure;
(jxi) announce an intention to do, or to enter into any discussion, negotiation, agreement, arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do concerning any of the actions restricted foregoing (other than this Agreement) or prohibited under clauses (ain each case, intentionally) through (j) of this Standstillencourage, assist, solicit or take seek to cause any action that might result in the Company having person to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, undertake any action inconsistent with the foregoingthis Section 2.
Appears in 1 contract
Standstill. Executive agrees The PL Capital Parties each agree that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period (as hereinafter defined), neither Executive nor any of his the PL Capital Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of MutualFirst:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an “Acquisition”), any voting securities of MutualFirst, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition PL Capital Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyMutualFirst common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryMutualFirst;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of MutualFirst or otherwise in any manner agree, attempt, seek or propose to deposit any securities of MutualFirst in any voting trust or similar arrangement, or subject any securities of MutualFirst to any arrangement or agreement with respect to the Company voting thereof (other than any such voting trust, arrangement or agreement solely among the SubsidiariesPL Capital Parties) except as expressly set forth in this Agreement (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the PL Capital Parties as long as any additional member(s) agrees to be bound by the terms of this Agreement);
(eiv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary MutualFirst or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryMutualFirst;
(fv) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryMutualFirst;
(gvi) otherwise act, alone or in concert with others, propose or to seek to propose offer to the Company or any Subsidiary MutualFirst or any of their respective its stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with MutualFirst or the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of MutualFirst or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of MutualFirst, nominate any person as a director of MutualFirst who is not nominated by the then incumbent directors (provided that if there is a vacancy on the MutualFirst Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the MutualFirst Board of Directors or representation on, or the Nominating Committee of the MutualFirst Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryMutualFirst;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of MutualFirst common stock beneficially owned by the PL Capital Parties to any person that would reasonably be understood to be the beneficial owner of 5% or more of the outstanding shares of MutualFirst common stock, planexcept in a transaction approved by the MutualFirst Board of Directors;
(viii) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against MutualFirst or the Bank or their respective directors or officers, or arrangement (whether written or oral) inconsistent with the foregoingin any derivative litigation on behalf of MutualFirst, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillexcept for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillParagraph 3, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 3 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any MutualFirst annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of MutualFirst they or any of them beneficially own in favor of the nominees for election or reelection as director of MutualFirst selected by the Board of Directors of MutualFirst and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any MutualFirst stockholder to a vote of the MutualFirst stockholders, to vote all of the MutualFirst shares they beneficially own in accordance with the recommendation of the MutualFirst Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by ▇▇. ▇▇▇▇▇▇▇ or the Substitute in his capacity as a member of MutualFirst’s Board of Directors or the Bank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 3 of this Agreement directly with the President and Chief Executive Officer of MutualFirst, or otherwise intentionally takeupon invitation, with other members of management or solicitthe Board of Directors of MutualFirst. The “Standstill Period” shall begin as of the date of this Agreement and shall remain in full force and effect until the later of (1) the close of business on the date of the 2016 annual meeting of stockholders of MutualFirst or (2) the last day that ▇▇. ▇▇▇▇▇▇▇ or any substitute for ▇▇. ▇▇▇▇▇▇▇ nominated by the PL Capital Parties pursuant to Paragraph 5 hereof (the “Substitute”), as the case may be, serves as a director of MutualFirst or cause the Bank. Notwithstanding anything in this Agreement to the contrary, at the sole option of MutualFirst, the Standstill Period may be terminated by MutualFirst in the event that the beneficial ownership of the PL Capital Parties decreases below 5% of the outstanding shares of MutualFirst common stock (in which event ▇▇. ▇▇▇▇▇▇▇ or encourage others to takethe Substitute, any action inconsistent with as the foregoingcase may be, shall promptly submit his resignation as a director of MutualFirst and the Bank).
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group and ▇▇▇▇▇▇▇ agrees that, directly other than as may be required by applicable law, order or indirectlyregulation, in during the Standstill Period, he or it will not, and he or it will cause each of such person's respective Affiliates, Associates and agents and any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):other persons acting on his or its behalf not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership of shares of the acquisition Common Stock or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting other securities of the Company or any Subsidiary, securities of any Affiliate of the Company (other than (i) the acquisition in of equity-based compensation pursuant to Section 12 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation and (ii) the direct acquisition by ▇▇▇▇▇▇▇ of up to an aggregate of less than one10,000 shares of Common Stock in addition to the acquisition or exercise of any equity-half of one percent of the outstanding voting securities of the Companybased compensation he may receive pursuant to Section 12);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group, ▇▇▇▇▇▇▇ or one or more of their respective Affiliates with respect to the Common Stock or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) engage in discussions with other shareholders of the SubsidiariesCompany, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company's shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of the Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrangesecurities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act); provided that open market sales of securities through a broker by the Shareholder Group or ▇▇▇▇▇▇▇ which are not actually known by the Shareholder Group or ▇▇▇▇▇▇▇, respectively, to result in any way participatetransferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction is approved by a majority of the Board; provided that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇ to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, ▇▇▇▇▇▇▇ or their respective stockholders Affiliates or make Associates) to obtain any public statement with respect to waiver, consent under, or amendment of, any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryprovision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company's securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jk) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ 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.
Appears in 1 contract
Standstill. Executive agrees that for a period (a) Until the later of 18 months from (x) the three (3) year anniversary of the Closing, and (y) the date of Executive’s termination of employment on which the Majority Approved Holders are no longer entitled to designate any director for any reasonnomination pursuant to Section 1.1 (or have irrevocably waived their right), neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willeach Stockholder agrees that, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior approval of the Board, such Stockholder will not (in its own capacity or with or through any other Person), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect “beneficial interest ownership” (as defined in Rule 13d-3 and Rule ▇▇▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇) of any voting securities of the Company or its Subsidiaries, including shares of Common Stock, any securities convertible or exchangeable into shares of Common Stock or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiaryof its Subsidiaries, excluding any shares of Common Stock or other than securities acquired (A) pursuant to a conversion or redemption of any shares of Series A Preferred Stock, bonus issue, dividend or distribution by the acquisition Company or otherwise acquired pursuant to the Transaction Documents (as defined in the aggregate of less than one-half of one percent of Investment Agreement), or (B) by a Person from the outstanding voting securities of the CompanyCompany in connection with such Person’s service as a director or Board observer;
(bii) except as otherwise expressly provided in this Agreement, make, or in any way knowingly encourage or participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission SEC promulgated pursuant to Section 14 of the Exchange Act), any securities of the Company or any of its Subsidiaries (whether or not any such vote relates to the election or removal of directors) of proxies or consents to vote, whether subject to or exempt from the federal proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity Person with respect to the voting of any voting securities of the Company or any Subsidiaryof its Subsidiaries or seek to propose to influence, advise, change or control the management, board of directors (or similar governing body), policies, affairs or strategy of the Company or any of its Subsidiaries by way of any public communication or other communications to their respective equityholders intended for such purpose;
(ciii) initiateexcept as otherwise expressly provided in this Agreement or as required in connection with the consummation of the transactions contemplated by the Investment Agreement, propose form, join or in any way participate or act in a “solicitgroup” (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 Act) with respect to any voting securities of the Company or the any of its Subsidiaries;
(eiv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (iA) any of the assets, assets (tangible and or intangible, ) of the Company or any Subsidiary of its Subsidiaries, or (iiB) any direct or indirect rightsright, warrants warrant or options option to acquire any assets asset of the Company or any Subsidiaryof its Subsidiaries, except in the event any such asset as is then being offered for sale by the Company or any of its Subsidiaries;
(fv) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its Subsidiaries or any securities convertible into or exchangeable or exercisable for any securities or assets of the Company or any of its Subsidiaries, except for such securities or assets as are then being offered for sale by the Company or any of its Subsidiaries;
(gvi) otherwise act, alone or in concert with others, to make any public announcement or seek to propose (in each case, with or without any condition) to the Company or Company, any Subsidiary of its Subsidiaries or any of their respective stockholders or make equityholders any public statement with respect to any amalgamation, merger, business combination, consolidation, sale, tender offer, or exchange offer, restructuring, reorganizationrecapitalization, dissolution, liquidation, recapitalization liquidation of or other similar transaction involving to or with the Company or any Subsidiary;
such Subsidiary (hor in respect of any securities of the Company or any of its Subsidiaries) or otherwise seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company or any Subsidiary, such Subsidiary or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose any Person as a director who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the then-incumbent Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany;
(ivii) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 2.2(a); provided that this clause shall not prohibit a Stockholder from making a confidential request or seek permission proposal to the Chief Executive Officer or make Chair of the Board seeking any public announcement with respect to amendment or waiver of any provision of this Section 2.2, which the StandstillCompany 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; or
(jviii) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (ai) through - (jvii) of this StandstillSection 2.2(a), or otherwise intentionally takeannounce any intention to do, or solicitenter into any arrangement, understanding or cause discussion with any one or encourage others more other Persons to takedo, any action inconsistent with of the foregoingactions restricted or prohibited under clauses (i) - (vii) of this Section 2.2(a).
(b) Nothing in Section 2.2(a) will limit the Stockholders’ ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.3 below), convert (subject to Section (C) of Article VII of the Series A Certificate) or otherwise exercise the rights of its shares of Common Stock or shares of Series A Preferred Stock or the ability of the Stockholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise its legal duties or otherwise act in its capacity as a member of the Board.
Appears in 1 contract
Standstill. Executive (a) Each TPG Shareholder agrees that for a period that, until the earlier of 18 months from the three (3) year anniversary of the date hereof or the date on which such TPG Shareholder does not Beneficially Own any Company Ordinary Shares, without the prior written consent of Executive’s termination at least a majority of employment for the Board, such TPG Shareholder shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(i) acquire, agree to acquire, propose or offer to acquire, or knowingly facilitate the acquisition of, any reasonCompany Ordinary Shares (other than acquisitions involving no more than three percent (3%) of the fully-diluted voting power of the Company Ordinary Shares in the aggregate and, neither Executive nor in any event, such that the TPG Shareholders, together with their controlled Affiliates, shall not 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 his affiliates the transactions contemplated by the Merger Agreement;
(ii) deposit any Company Ordinary Shares into a voting trust or persons similar contract or entities acting at his direction subject any Company Ordinary Shares to any voting agreement, pooling arrangement or similar arrangement or other contract, or grant any proxy with his assistance willrespect to any Company Ordinary Shares, unless specifically invited in writing 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, acting by resolution approved by a majority of all members of the Boardenter, directly or indirectly, in any manner (the obligations pursuant agree to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer enter or propose to acquire, solicit an or offer to sell enter into any merger, business combination, recapitalization, restructuring, change in control transaction or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of other similar extraordinary transaction involving the Company or any Subsidiary, other than the of its subsidiaries or an acquisition in the aggregate of less than one-half of one percent 10% or more of the outstanding voting securities assets of the CompanyCompany and its subsidiaries;
(biv) makeother than in connection with any matter recommended by the Board, make or participate or engage in (subject to Section 5.1(b)), any “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) to vote any Company Ordinary Shares, disregarding clause (iv) of Rule 14a-1(l)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b);
(v) publicly disclose any intention, plan, arrangement or other contract prohibited by, or inconsistent with, the foregoing;
(vi) advise or knowingly assist or knowingly encourage or enter into any negotiations or agreements or other contracts with any other persons in connection with the foregoing;
(vii) with respect to any of the foregoing, (A) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant subject to Section 14 of the Exchange Act5.1(b)) 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 and the rules and regulations thereunder) with respect to any voting securities common stock; (B) call, or seek to call, a meeting of the shareholders of the Company or initiate any shareholder proposal for action by shareholders of the Subsidiaries;
Company with respect to any of the foregoing or (eC) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) take any of the assets, tangible and intangible, of action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a business combination, merger, sale of assets or any Subsidiary other type of transaction or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiarymatter described in this Section 5.1;
(fviii) arrange, present at any annual meeting 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 special meeting of the Company Company’s shareholders or through action by written consent any Subsidiary;
(g) otherwise act, alone proposal for consideration for action by shareholders or in concert with others, propose any nominee for election 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 seek the removal of any member of the BoardBoard of Directors, or propose any matter in each case, subject to be voted upon by the stockholders rights of the TPG Shareholders pursuant to Section 2.2; or
(ix) request the Company or any Subsidiary;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) make prohibit any publicly disclosed proposalTPG Shareholder or any of its controlled Affiliates from privately communicating with, public statement, public inquiry or public disclosure of including making any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request offer or proposal to, 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 amend, waive the Board or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision the shareholders of the StandstillCompany, (B) participate in deliberations or discussions of the 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 taking any action prohibited by his or her legal duties and obligations as a member of the Board; or
(jiv) announce an intention to do, restrict any TPG Shareholder or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of its Permitted Transferees from Transferring any Subject Shares to any Permitted Transferees of such TPG Shareholder or any successor of such TPG Shareholder that, in any such case, agrees to be bound by the actions restricted or prohibited under clauses provisions contained in this Agreement.
(ac) through (j) of Nothing set forth in this StandstillSection 5.1 shall prohibit, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, restrict or otherwise intentionally takelimit the ability of any TPG Shareholder or any Affiliate of any TPG Shareholder from engaging in any hedging and derivative transactions 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 solicit, or cause or encourage others to take, any action inconsistent with purpose of circumventing the foregoingtransfer restrictions contained in this Agreement.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from Further, at all times during the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members each member of the BoardBarington Group will not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asand will cause each of its Affiliates not to, the “Standstill”):directly or indirectly:
(a) acquireSolicit 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 “participant” (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”) 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 date of this Agreement), including a group as defined under Section 13(d) of the Exchange 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 (a) above.
(d) Present any proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration for action by stockholders, propose any nominee for election to the Board or seek to 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 propose to acquire, solicit an offer agree to sell or agree to acquire, directly or indirectly, alone through swap or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities security of the Company or any Subsidiaryright 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 than the acquisition ownership interest in the aggregate of less than one-half of one percent 5% or more of the shares of Common Stock outstanding voting 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 in a transaction approved by the Board.
(g) Make any request under Section 220 of the DGCL, other than any request made by a director under Section 220(d).
(h) Threaten, file or 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 its Affiliates, directors, officers or employees (except (i) solely in connection with enforcing the Barington Group’s rights hereunder or (ii) any Legal Proceeding in a capacity other than as a stockholder or 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 extent, 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).
(j) 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;
(bii) make, or acquisition of any interest in any way participate in, directly material asset or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities business of the Company or any Subsidiaryof its subsidiaries;
(ciii) initiatemerger, propose acquisition, share exchange or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of other business combination involving 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 proposalits subsidiaries; 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;or
(div) formrecapitalization, join restructuring, liquidation, dissolution or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act other extraordinary transaction with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary of its subsidiaries or material portion of its or their businesses.
(k) Request in writing any waiver, consent under or any amendment of, any provision of their respective stockholders this Agreement.
(l) File or make commence any public statement 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 with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving of the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence foregoing. For the managementavoidance of doubt, the Board or policies provisions of this Section 3 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. For purposes of this Agreement, the “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, if earlier, 10 days prior to any Subsidiaryadvance 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 otherwise seekhas notified Barington in writing of its commitment to recommend) that its stockholders vote for the re-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, alone 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 concert connection with othersany solicitation of stockholder action by written consent (each a “Stockholders Meeting”) within the Standstill Period, in each case that are entitled to vote at any such Stockholders Meeting, 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 or appointment to or representation on, or to 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 or propose the nomination of any candidate toNew Nominees for re-election at the 2015 Annual Meeting, the Board or the removal of Standstill Period ends and any member of the BoardBarington Group nominates, or propose 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 any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry such nomination or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingannouncement.
Appears in 1 contract
Standstill. Executive agrees Each of CD&R Fund and the Purchaser Parties agree that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Company Board, acting by resolution approved by a majority of all members of CD&R Fund and the BoardPurchaser Parties shall not, directly or indirectly, and shall cause their respective Affiliates not to (either individually, or in concert with any manner other Person, or as a “group” (as such term is used in Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Exchange Act)):
(a1) acquire, offer or propose seek to acquire, solicit an offer to sell or agree to acquireacquire or make a proposal to acquire (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), by purchase or otherwise, of record or through Beneficial Ownership, directly or indirectly, alone any Equity Securities, loans or in concert with others, by purchase, tender offer, exchange offer, through debt securities of the acquisition Company or control any of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities its Subsidiaries or direct or indirect rightsrights to acquire any Equity Securities, warrants loans or options to acquiredebt securities of the Company or any of its Subsidiaries, any securities or securities rights convertible into or exchangeable forfor 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 with respect to voting of, any voting securities of the Company or any Subsidiaryof its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders (or action by written consent in lieu thereof) or initiate or make any stockholder proposal for action by the Company’s stockholders, other than with respect to the acquisition in designation of any Purchaser Designees pursuant to this Agreement or the aggregate solicitation of less than one-half “proxies” or consents with respect to the election of one percent 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 outstanding voting securities of the CompanyCompany Board;
(b3) makemake any announcement with respect to, or offer, propose or indicate an interest in (in 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 assets of the Company or its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities or assets, or enter into any 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 inin a merger, directly consolidation, division, acquisition or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting exchange 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 Equity 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 thereof or any way participate in a “group” within the meaning of Section 13(d)(3) material portion of the Exchange Act with respect to any voting securities assets thereof, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or the any of its Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g5) otherwise act, alone or in concert with others, to seek to propose to control or influence, in any manner, management or the Company Board, the Company or any Subsidiary of its Subsidiaries;
(6) make any public proposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) other than in respect of purchases of Common Stock not prohibited by clause (1), take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any of their respective stockholders the events described in this Section 4.10;
(8) enter into any negotiations, arrangements or make understandings with any public statement third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any mergerof the foregoing, business combinationincluding forming, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization joining or other transaction involving 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 its Subsidiaries or otherwise in connection with any of the foregoing;
(9) request the Company or any Subsidiaryof 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;
(h10) seekcontest the validity of this Section 4.10 or make, alone initiate, take or participate in concert with others, any demand or action (legal or otherwise) to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive alter or terminate any provision of this Standstill Section 4.10;
(11) deposit any Equity Securities owned thereby (whether Beneficial Ownership or seek permission record ownership) in any voting trust or subject any such Equity Securities to any arrangement or make agreement (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) with respect to the voting of any public announcement 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 provision 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 Standstillsecurities or loans of the Company or its Subsidiaries; or
(j13) announce an intention advise, assist, knowingly encourage or direct any Person to do, or to enter into advise, assist, encourage or direct any arrangement or understanding with others (whether written or oral) other person to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing; provided, however, that nothing in this Section 4.10 will limit (1) the Purchaser Parties’ ability to submit on a confidential basis any communication or prohibited under clauses proposal to the Company Board 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, (a2) through the Purchaser Parties’ ability to vote (j) subject to the terms of this Standstill, Agreement and other Transaction Documents) or take any action that might result in Transfer (subject to Section 4.7 and the Company having to make a public announcement regarding any other Transaction Documents) their shares of the matters referred to in clauses (a) through (j) of this StandstillPreferred Stock or Common Stock, or otherwise intentionally takeexercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (3) the preemptive rights of any Purchaser Party pursuant to Section 4.9, or solicit(4) the ability of any Purchaser Designee to act in his or her capacity as a member of the Company Board, including, but not limited to, his or cause her ability to vote or encourage others to take, any action inconsistent with the foregoingotherwise exercise his or her fiduciary duties.
Appears in 1 contract
Standstill. Executive 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 for a period of 18 is eighteen (18) months from the Closing, except in the case of Section 2.1(d) below, which shall continue until the date of Executive’s termination of employment for any reasonthat is thirty-six (36) months from the Closing, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willwhich times the standstill period shall end (the “Standstill Period”), (unless specifically invited requested in writing by the BoardCompany, acting by through a resolution approved by of a majority of all members 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 BoardShareholder or its Affiliates) (such controlled Affiliates, directly or indirectly, in any manner (together with the obligations pursuant to this Section 13 being referred to asShareholder, the “StandstillPrincipal Shareholder Affiliates”):
) not to: (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, vote or seek to advise, encourage advise or influence in any manner whatsoever any person or entity other stockholder of the Company with respect to the voting of any voting securities of the Company 2 (b) seek, alone or in 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 Subsidiary;
person, to submit nominations in furtherance of a “contested solicitation” for the election or 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, seek or knowingly encourage any third Person with respect to the election or removal of any directors; (c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Exchange Act Act) with respect to any voting securities of the Company Common Stock or the Subsidiaries;
Common Stock Equivalents; (ed) acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, 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, through swap or hedging transactions any short sale (whether or not against the box) or any purchase, sale or grant of 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, (i) any securities of the assets, tangible and intangible, of the Company or any Subsidiary 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 (iic) direct as the result of a share repurchase or indirect rightssimilar Company action that reduces the number of outstanding shares of Common Stock; (e) except through the Shareholder Director or Observer, warrants acting in such Shareholder Director’s or options to acquire any assets Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company or any Subsidiary;
(f) arrangeCompany, 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 mergercontrol, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to controladvise, change or influence the management, the Board board of directors, governing instruments, policies or policies affairs of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
Company; (if) make any publicly disclosed proposalpublic disclosure, or take any action that could require the Company to make any public statementdisclosure, public inquiry or public disclosure with respect to any of the matters set forth in this Section 2.1; (g) disclose any intention, plan, plan or arrangement inconsistent with the foregoing; or (h) have any discussions or enter into any arrangements (whether written or oral) inconsistent 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) 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 (including, but not limited to, beneficial ownership) voting securities of the resulting corporation having 50% or less of the total voting power of the outstanding voting securities; (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 foregoingapproval of its Board of Directors.
2.2 Nothing in this Section 2 shall restrict the Shareholder from making any proposal directly to the 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 make 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 disclose investment shall not be deemed to be distinct from such private equity business if and at such time that (a) any request confidential information with respect to the Company or proposal its Subsidiaries is made available to amend, waive investment professionals of such business or terminate investment who are not involved in the private equity business and who are involved in such other business or investment or (b) the Shareholder or any of its Affiliates instructs any such business or investment to take any action that would violate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of Agreement had such action been taken directly by the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingShareholder.
Appears in 1 contract
Sources: Principal Shareholder Agreement
Standstill. Executive agrees that for a For the period of 18 (the “Standstill Period”) commencing on the date hereof and ending on the earlier of: (i) the date which is six months from the date of Executive’s termination this Agreement; and (ii) the date a person not affiliated with Purchaser or its associates (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) acquires, announces an intention to acquire or proposes to acquire in an transaction described in clauses (a) through (j) below not approved by the Board of employment for any reasonDirectors of the Company; Purchaser will not, neither Executive nor any of his and will cause its associates (as such term is defined under the Exchange Act) and its affiliates or persons or entities acting at his direction or with his assistance willwhom it controls (as such term is defined under the Exchange Act) not to, unless specifically invited expressly requested in writing writing, in advance, by the Board, acting by resolution approved by Company or pursuant to a majority of all members of written agreement with the BoardCompany, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):whatsoever:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company[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 inin (other than by granting a proxy to management representatives), directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from any holders of any securities of the proxy rules, Company;
(d) call or seek to advisehave called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, encourage alone or in concert with others, to advise or influence in any manner whatsoever whatsoever, any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCompany;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(de) form, join or participate in, or otherwise encourage the formation of, any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the record or beneficial ownership of any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany;
(f) arrange, facilitate, or in any 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 of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its subsidiaries;
(g) otherwise (1) act, alone directly, or in concert with othersindirectly, to seek to propose control, advise, direct or influence the management, Board of Directors (including any individual members thereof), stockholders, policies or affairs of the Company or any subsidiary thereof; provided, however, that nothing contained herein shall prevent Purchaser from freely communicating privately with management and the directors Purchaser’s observations, recommendations and preferences with respect to the Company, its operations and policies; or (2) disclose an intent, purpose, plan or proposal with respect to the Company or any Subsidiary subsidiary thereof inconsistent with the provisions of this letter agreement, including, without limitation, any intent, purpose 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 plan that requires the Company to waive the benefit of or amend any Subsidiaryprovision of this letter agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters types set forth in clauses (a) through (g) of this Section 6.1;
(i) 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 take, any action referred to in clauses (a) through (g), inclusive, of this Section 6.1;
(j) assist, 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 of the type referred to in clauses (a) through (i), inclusive, of this Standstill, Section 6.1. The expiration of the Standstill Period shall not terminate or otherwise intentionally take, or solicit, or cause or encourage others to take, affect any action inconsistent with of the foregoingother provisions of this letter agreement.
Appears in 1 contract
Sources: Purchase Agreement (Corning Natural Gas Holding Corp)
Standstill. Executive agrees that for a period of 18 months from Section 4.1. During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardShareholder shall not, directly or indirectly, in any manner and shall cause its Representatives (to the obligations pursuant to this Section 13 being referred to asextent acting on behalf of the Shareholder) and Group Members directly or indirectly not to, without the prior written consent of, or waiver by, the “Standstill”):Company:
(a) subject to Section 4.2, acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal (including any private proposal to the Company or the Board of Directors) to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct securities (including any Equity Securities or indirect beneficial interest in any voting securities Voting Securities, but excluding debt securities) or Derivative Instruments, or direct or -10- US-DOCS\70827213.10 indirect rightsrights to acquire any securities (including any Equity Securities or Voting Securities, warrants but excluding debt securities) or options to acquireDerivative Instruments, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities Subsidiary or Affiliate of the Company, or any securities (including any Equity Securities or Voting Securities, but excluding debt securities) or indebtedness convertible into or exchangeable for any such securities; [provided that the Shareholder may acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire Shares (and any securities (including any Equity Securities or Voting Securities, but excluding debt securities) convertible into or exchangeable for Shares) and Derivative Instruments, if, immediately following such acquisition, the collective Beneficial Ownership of Shares of the Shareholder and its Group Members, as a group, would not exceed the Standstill Level;] provided that nothing in this Agreement, including in this Section 4.1(a), shall prohibit the Shareholder or any of its Group Members from making a non-public offer to the Board of Directors so long as the Shareholder or such Group Member reasonably believes that such offer will not result in the Company or the Shareholder or their Affiliates being required by applicable law to disclose the making of such offer promptly following the making thereof;
(b) makeoffer, or seek to acquire, or participate in any way participate inacquisition of assets or business of the Company and its Subsidiaries;
(c) conduct, directly fund or indirectly, alone or otherwise become a participant in concert with others, any “solicitationtender offer” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14D under the Exchange Act) of proxies involving Equity Securities, Voting Securities or consents to vote, whether subject to or exempt from the proxy rulesany securities convertible into, or exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the Board of Directors;
(d) otherwise act in concert with others to seek to advise, encourage control or influence the Board of Directors or shareholders of the Company or its Subsidiaries or Affiliates; provided that nothing in this clause (d) shall preclude the Shareholder or its Representatives from engaging in discussions with the Company or its Representatives or the Shareholder’s designated and/or nominated director to the Board of Directors pursuant to Section 6.2 from engaging in any manner whatsoever activities in his or her capacity as such designated and/or nominated director;
(e) make or join or become a participant (as defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or encourage) any person “solicitation” of “proxies” (as such terms are defined in Regulation 14A as promulgated by the SEC), or entity consent to vote any Voting Securities or any of the voting securities of any Subsidiaries or Affiliates of the Company (including through action by written consent), or otherwise knowingly advise or influence any Person with respect to the voting of any voting securities of the Company or any Subsidiaryits Subsidiaries or Affiliates;
(cf) initiatemake any public announcement with respect to, or solicit or submit a proposal for, or offer, seek, propose or indicate an interest in (with or without conditions) any merger, consolidation, business combination, “solicittender offer” (as such term is used in Regulation 14D under the proxy rules Exchange Act), recapitalization, reorganization, purchase or license of a material portion of the Securities and Exchange Commission) stockholders assets, properties, securities or indebtedness of the Company or any -11- US-DOCS\70827213.10 Subsidiary for or Affiliate of the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange ActCompany, or otherwiseother similar extraordinary transaction involving the Company, any Subsidiary of the Company or any of its securities or indebtedness, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(g) call or seek to call a meeting of shareholders of the Company or initiate any shareholder proposal or meeting agenda item for action of the Company’s shareholders, or seek election or appointment to or to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors;
(h) form, join, become a member or otherwise participate in a Group (other than with the Shareholder, any of its Group Members or any counterparty (other than a Prohibited Transferee) in connection with a Hedging Arrangement that complies with Section 2.1(c)(iv)) with respect to the securities of the Company or any of its Subsidiaries or Affiliates;
(i) deposit any Voting Securities in a voting trust or similar Contract or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Shareholder or any of its wholly-owned Subsidiaries, (ii) as part of a Hedging Arrangement that complies with Section 2.1(c)(iv) or (iii) in accordance with Section 3.1);
(j) make any proposal or disclose any plan, or cause or encourage authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to make any proposal or attempt to disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) knowingly take any action or cause or encourage others authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to initiate take any such stockholder proposal; action on its or their behalf, that would reasonably be expected to require the Company or any of its Subsidiaries or Affiliates to publicly disclose any of the foregoing actions or the possibility of a business combination, merger or other type of transaction or matter described in this Section 4.1;
(l) knowingly advise, assist, arrange or otherwise communicate enter into any discussions or arrangements with any third party with respect to any of the Company’s foregoing; or
(m) directly or indirectly, contest the validity of, any provision of this Section 4.1 (including this subclause) or Section 3.1 (whether by legal action or otherwise).
Section 4.2. Notwithstanding anything herein to the contrary, the prohibition in Section 4.1(a) shall not apply to the activities of the Shareholder or any of its Subsidiaries’ stockholders Group Members in connection with: -12- US-DOCS\70827213.10
(a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or others other like change approved or recommended by the Board of Directors; or
(b) acquisitions made in connection with a transaction or series of related transactions in which the solicitation Shareholder or any of proxies its Group Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or consents Derivative Instruments, or matters presented any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the time of the consummation of such acquisition. Notwithstanding anything herein to the Company’s contrary, the prohibition in Section 4.1(a) shall immediately terminate, and the Shareholder and its Affiliates may engage in any of the activities specified in Section 4.1, in the event that
(c) the Company publicly announces that it has entered into an agreement with any Person or its Subsidiaries’ stockholdersgroup which provides for (i) the acquisition by such person or group of more than 50% of the common stock of the Company or all or a majority of the assets of the Company or (ii) any merger, consolidation or similar business combination, including as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change; involving the Company and such person or group (each, a "Third Party Acquisition");
(d) form, join or any way participate in a “group” within the meaning Board of Section 13(d)(3) of the Exchange Act with respect to any voting securities Directors recommends that shareholders of the Company tender their shares or the Subsidiaries;vote in favor of a Third Party Acquisition; or
(e) acquireany person or group (i) acquires Beneficial Ownership of more than 50% of the outstanding Common Stock of the Company, (ii) makes an offer which if fully subscribed would result in such person or group acquiring Beneficial Ownership of more than 50% of the outstanding Common Stock of the Company, or (iii) publicly announces an intention to acquire engage in a Third Party Acquisition, and, in the case of clause (ii) or agree (iii), the Company does not, within ten (10) Business Days of public announcement thereof by such person or group, publicly oppose and/or recommend to acquireits stockholders that they not accept such offer or support such Third Party Acquisition. Notwithstanding any of the foregoing, directly or indirectly, alone or nothing in concert with others, by purchase, exchange or otherwise, this Agreement shall restrict (i) any of the assetsShareholder's Representatives effecting or recommending transactions in securities (A) in the ordinary course of its business as an investment advisor, tangible broker, dealer in securities, market maker, specialist or block positioner and intangible, (B) not at the direct or request of the Company Shareholder or any Subsidiary or of its Affiliates, and (ii) direct the director designated or indirect rights, warrants nominated by the Shareholder from exercising his 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 her fiduciary duties as a member of the Board, or propose any matter to be voted upon by the stockholders Board of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingDirectors.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonCooperation Period, neither Executive nor any of his affiliates or persons or entities each Irenic Party will not, and will cause its Controlling and Controlled Affiliates (and those under common Control) and its and their respective Representatives acting at his direction or on their behalf (collectively with his assistance willthe Irenic Parties, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) to not, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to asprior written consent, invitation, or authorization of the “Standstill”):Company or the Board:
(ai) acquire, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly by purchase or indirectlyotherwise, or direct any Third Party in the acquisition of record or beneficial ownership of or economic exposure to any securities of the Company or rights or options to acquire any securities of the Company, or engage in any swap or hedging transaction, or other derivative agreement of any nature with respect to any securities of the Company, in each case, if such acquisition, offer, agreement or transaction would result in the Irenic Parties, together with their Affiliates, having beneficial ownership of more than 9.99%, or aggregate economic exposure to more than 9.99%, of the shares of Common Stock outstanding at such time;
(ii) alone or in concert with othersany one or more Third Parties, (A) call or seek to call (either publicly or privately) a meeting of the Company’s stockholders or act by purchasewritten consent in lieu of a meeting (or call or seek to call for the setting of a record date therefor), tender offer, exchange offer, through the acquisition (B) seek election or control of another person or entityappointment to, or otherwiserepresentation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any direct candidate to the Board, except as expressly set forth in Section 1, (C) make or indirect beneficial interest in be the proponent of any voting securities stockholder proposal to the Company, the Board or direct any of its committees, (D) seek (including through any “withhold” or indirect rights, warrants or options to acquiresimilar campaign) the removal of any member of the Board, or securities convertible into (E) conduct, call for or exchangeable forpublicly support a referendum of stockholders of the Company; provided that nothing in this Agreement will prevent the Irenic Parties or their Affiliates from taking actions in furtherance of privately identifying any Replacement New Director in accordance with Section 1(f) following the departure of a New Director or in anticipation of the potential imminent departure of a New Director (it being understood that prior to taking such action, the Irenic Parties will first notify the Company of such potential imminent departure), as applicable;
(iii) make any voting securities request for stockholder list materials or other books and records of the Company or any Subsidiaryof its Affiliates, other than the acquisition in the aggregate of less than one-half of one percent whether pursuant to Section 220 of the outstanding voting securities DGCL or under any statutory or regulatory provision relating to stockholder access to books or records of the CompanyCompany or any of its Affiliates;
(biv) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and SEC, but including, notwithstanding anything to the contrary in Rule 14a-2 under the Exchange Commission promulgated Act, solicitations of ten (10) or fewer shareholders that would otherwise be excluded from the definition of “solicitation” pursuant to Section 14 of Rule 14a-2(b)(2) under the Exchange Act) of one or more proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities one or more directors of the Company or any Subsidiary;
(c) initiate, propose other matter or proposal relating to the Company or become a “solicitparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 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 Schedule 14A under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate ) in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersconsents;
(dv) formmake or submit any proposal, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act offer for (with respect to any voting securities of the Company or the Subsidiaries;
(e) acquirewithout one or more conditions), offer to acquire or agree to acquire, directly or indirectly, either alone or in concert with others, by purchaseany tender offer, exchange offer, merger, consolidation, amalgamation, acquisition, sale of all or otherwisesubstantially all assets, business combination, recapitalization, restructuring, reorganization, liquidation, dissolution or other extraordinary transaction involving the Company (iincluding its direct or indirect subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), either publicly or in a manner that would reasonably be expected to result in or require public disclosure by the Company or any of the assetsRestricted Persons (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, tangible and intangiblereceiving consideration or other payment for shares, or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company);
(vi) make any proposal, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to (A) any change in the number or identity of directors of the Company or the filling of any vacancy on the Board, other than as provided under Section 1 of this Agreement, (B) any change in the capitalization, capital allocation policy or dividend policy of the Company, (C) any other change in the Company’s management or corporate or governance structure, (D) any waiver, amendment or modification to the Company’s Restated Certificate of Incorporation or the Bylaws (collectively, the “Organizational Documents”), (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other Person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any securities of the Company or 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 such securities, or assets (B) in conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or any Subsidiarythe Board), other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise expressly permitted by this Agreement;
(gviii) otherwise actform, alone join, knowingly encourage or knowingly participate in or act 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 Group with respect to any mergerof its securities of the Company, business combinationor any securities convertible or exchangeable into or exercisable for any such securities, consolidationother than solely with Affiliates of the Irenic Parties with respect to securities of the Company now or hereafter owned by them;
(ix) enter into any voting trust, arrangement or agreement with respect to any securities of the Company, or any securities convertible or exchangeable into or exercisable for any such securities, or subject any securities of the Company, or any securities convertible or exchangeable into or exercisable for any such securities, to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely between or among any two or more of the Irenic Parties and their Affiliates, or (C) granting any proxy in any solicitation approved by the Board and consistent with Section 2(b) above;
(x) engage in any short sale or any purchase, sale, tender offeror grant of any option, exchange offerwarrant, restructuringconvertible security, reorganizationstock appreciation right, dissolution, liquidation, recapitalization or other transaction similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange-traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of any of the Company’s securities and would, in the aggregate, result in the Irenic Parties ceasing to have a Net Long Position in the Company;
(xi) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, all or substantially all, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xii) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company, any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions in the name of the Company); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Irenic Party from (A) bringing litigation against the Company to enforce any express provision of this Agreement instituted in accordance with and subject to Section 11, (B) making any counterclaim with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against any SubsidiaryIrenic Party, (C) bringing bona fide commercial 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;
(hxiii) seekenter into any negotiation, alone or in concert with othersagreement, to control, change or influence the management, the Board or policies of the Company or any Subsidiaryarrangement, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement understanding (whether written or oral) inconsistent with any Third Party to take any action that the foregoing, or Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xiv) make or disclose any request or submit any proposal to amendamend or waive any of the terms of this Agreement (including this subclause), waive in each case publicly or that would reasonably be expected to result in a public announcement or disclosure of such request or proposal or give rise to a requirement to so publicly announce or disclose 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 the following: (A) any material breach of this Agreement by the Company (including any failure (I) to appoint the Investor Designee to the Board in accordance with Section 1(a), (II) to include the Investor Designee (and the New Independent Director, if the New Independent Director is appointed to the Board prior to the 2024 Annual Meeting) in the slate of nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to the 2024 Annual Meeting in accordance with Section 1(d), or (III) to issue the Press Release in accordance with Section 3), as determined by a court of competent jurisdiction; provided that the Company’s failure to take any of the actions identified in the foregoing (I) – (III) will constitute a material breach of this Agreement without requiring a determination by a court of competent jurisdiction, upon five (5) Business Days’ written notice by any of the Irenic Parties to the Company if such breach has not been cured within such notice period; provided that the Irenic Parties are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (B) any material breach of the Consulting Agreement by the Company, as determined by a court of competent jurisdiction, upon five (5) Business Days’ written notice by any of the Irenic Parties or ▇▇. ▇▇▇▇▇▇ to the Company if such breach has not been cured within such notice period; provided that ▇▇. ▇▇▇▇▇▇ is not in material breach of the Consulting Agreement and the Irenic 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; (C) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any Person or Group of more than 50% of the Common Stock or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company, (y) one or more definitive agreements providing for the acquisition by the Company or its subsidiaries of one or more businesses or assets having an aggregate value exceeding 25% of the aggregate enterprise value of the Company during the Cooperation Period, or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 20% of the Common Stock (including on an as-converted basis, and including other securities of the Company with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another Person by the Company or one or more of its subsidiaries shall not be counted toward this clause (z)); and (D) the commencement of any tender or exchange offer (by any Person or Group other than the Irenic Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any Person or Group of more than 50% of the Common Stock, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer); provided that, in the event the restrictions in this Section 2(c) terminate pursuant to the foregoing clauses (C) or (D) of this Section 2(c) and any of the Irenic Parties determine to solicit proxies against any transactions contemplated by (C) and (D), the Investor Designee shall deliver his or her written resignation to the Board for his or her immediate resignation prior to the commencement of any soliciting activities by the Irenic Parties. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including the restrictions in this Section 2(c)) will prohibit or restrict any Restricted Person from (I) stating how it intends to vote with respect to an Extraordinary Transaction, if any, and the reasons therefor, (II) complying with any subpoena or other legal process or responding to a request for information from any governmental authority with jurisdiction over such Restricted Person (so long as such process or request did not arise as a result of any discretionary act by any Restricted Person); provided that such Restricted Person will notify the Company promptly in writing (if reasonably practicable and to the extent not legally prohibited) of the existence, terms, and circumstances surrounding such request or requirement; provided, further, that no Restricted Person shall be required to provide the notice to the Company referenced in the immediately preceding proviso in the case of disclosures required to be made by such Restricted Person in the course of a routine audit or review by a competent regulatory or administrative authority which is not specifically related to the Company or such Restricted Person’s interactions with the Company, (III) granting any lien or encumbrance on any claim or interest in favor of a bank or broker-dealer or prime broker holding such claim or interest in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claim or interest in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (IV) negotiating, evaluating or trading, directly or indirectly, in any index fund, exchange-traded fund, benchmark fund or broad basket of securities that may contain or otherwise reflect the performance of, but does not primarily consist of, securities of the Company, or (V) providing its views privately to any member of the Board or to the Company’s Chief Executive Officer, Chief Financial Officer, or General Counsel or any financial or legal advisors that have been identified by the Chief Executive Officer to the Irenic Parties regarding any matter, or privately requesting a waiver of any provision of this Standstill Agreement, as long as such private communications or seek permission requests would not reasonably be expected to require public disclosure of such communications or make any public announcement with respect to any provision of requests by the Standstill; or
(j) announce an intention to do, Company or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted Restricted Persons. Furthermore, nothing in this Agreement shall prohibit or prohibited under clauses (a) through (j) restrict the Investor Designee from exercising his or her rights and fiduciary duties as a director of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.th
Appears in 1 contract
Standstill. Executive agrees that for a period (a) Subject to the provisions of 18 months this Section 6.04, from the date of Executive’s hereof until the Closing Date or the earlier termination of employment for any reasonthis Agreement pursuant to Article VII, except as contemplated by the Transaction Documents or in furtherance of the transactions contemplated by this Agreement, or as otherwise approved by the Board of Directors, neither Executive the Investor nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Guarantor shall, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members and each of the BoardInvestor and the Guarantor shall cause each of their respective Affiliates not to, in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asacting alone or with others, the “Standstill”):
(a) acquire, offer including as part of a 13D Group or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone through or in concert with otherstheir respective directors, officers, employees, agents or representatives:
(i) acquire or agree, offer, seek or propose, whether by purchase, tender offer, or exchange offer, through to acquire ownership of any (x) of the acquisition businesses or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities material assets of the Company or any Subsidiary or (y) Beneficial Ownership of (i) any Equity Securities or any equity securities of any Subsidiary, other than or (ii) any derivative instrument the acquisition in the aggregate value of less than one-half of one percent of the outstanding voting securities of the Companywhich is determined by reference to any Equity Security;
(bii) makemake any proposal for a merger, reorganization, recapitalization, business combination or other similar extraordinary transaction involving the Company or any Subsidiary (other than any Subsidiary in which Investor holds an interest);
(iii) seek to influence the control or management of the Company or any Subsidiary (other than any Subsidiary in which Investor holds an interest) in any way participate inmanner, directly or indirectly, alone or including by engaging in concert with others, any “solicitation” (as such term is used in within the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 meaning of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesvote any Equity Securities, or seek to advise, encourage or influence becoming a “participant” in any manner whatsoever “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, or calling, or seeking or proposing to call, any person meeting of the Company’s stockholders in connection therewith;
(iv) in any manner, agree, attempt, seek or entity with respect propose to the voting of deposit any voting securities of the Company or any Subsidiaryrights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Equity Securities or any equity securities of any Subsidiary in any voting trust or similar arrangement;
(cv) initiate, propose form or “solicit” (as such term is used join in the formation of a 13D Group with respect to any Equity Securities or equity securities of any Subsidiary (other than otherwise to the Company or the relevant Subsidiary or a Person specified by the Company in a proxy rules of the Securities and Exchange Commission) card provided to stockholders of the Company or any the relevant Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 by 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 on behalf of the Company or the Subsidiariesrelevant Subsidiary);
(evi) acquirepublicly announce any intention, offer to acquire plan or agree to acquire, directly or indirectly, alone or arrangement in concert connection with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, foregoing or finance (or arrange for financing for) any Person for the purposes of pursuing any of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jvii) announce an intention to do, or to enter into any arrangement or understanding discussions with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillthird party regarding, or take any action that might result in would require the Company having to make any public disclosure with respect to any of the foregoing; provided that (i) nothing in this Section 6.04 shall be construed as prohibiting the Guarantor from engaging in any confidential discussions with the chief executive officer of the Company with respect to the matters set forth in Section 6.04(a), provided such discussions do not require the Company to make any public disclosures with respect thereto or with respect to the foregoing and (ii) the restrictions set forth in this Section 6.04 shall terminate and be of no further force or effect if any Person (other than the Investor or any Affiliate of the Investor), whether singly or as part of a public announcement regarding 13D Group, acquires a majority of the Company’s Equity Securities or all or substantially all of the Company’s and its Subsidiaries’ assets, taken as a whole (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise).
(b) Neither the Investor nor the Guarantor will request, directly or indirectly, that the Company (or its Affiliates, directors, officers, employees, agents or representatives) terminate, amend, modify or waive any provision of this Section 6.04. The Investor and the Guarantor shall promptly notify the Company of any material proposal made to its or any Subsidiary of Guarantors’ board members or executive officers with respect to any of the matters referred to set forth in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 6.04(a).
Appears in 1 contract
Standstill. Executive agrees that for a period (a) Subject to the provisions set forth below, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members the Independent Directors, each Purchaser will not and will cause each member of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its Purchaser Group not to:
(ai) acquireacquire or agree, offer or propose to acquire, solicit an offer to sell other than as contemplated or agree to acquirepermitted in the Transaction Documents, directly or indirectly, alone or in concert with othersany other Person, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct (A) ownership of any of the material assets or indirect beneficial interest in businesses of the Company or any voting securities of its Subsidiaries, or direct or indirect rights, warrants any rights or options to acquireacquire such ownership (including from any third party), or securities convertible into or exchangeable for, (B) Beneficial Ownership of any voting securities of the Company or any Subsidiaryof its Subsidiaries, other than or any rights or options to acquire such ownership (including from any third party); provided, however, that the acquisition foregoing shall not apply (x) to any Securities purchased pursuant to the terms of this Agreement or acquired on the conversion thereof or in exchange therefor, (y) to any Securities purchased pursuant to Permitted Transfers, including as between the WP Purchasers and the Deerfield Purchasers pursuant to Section 5.19, or pursuant to the exercise of rights set forth in Section 5.4, or (z) any Common Stock purchased in Market Transfers so long as the aggregate amount of less securities purchased in Market Transfers by such Purchaser represents not more than one-half of one percent of the outstanding voting securities 5% of the Company’s outstanding shares of Common Stock on a Fully Diluted Basis;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” solicit proxies (as such term terms are defined in Rule 14a-1 under the Exchange Act), whether or not such solicitation is used in exempt under Rule 14a-2 under the proxy rules Exchange Act, with respect to any matter from holders of any shares of stock of the Securities and Exchange Commission promulgated pursuant to Company or any securities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of such stock;
(iii) initiate, or intentionally induce any other Person, entity or group (as defined in Section 14 13(d)(3) of the Exchange Act) of proxies to initiate, any shareholder proposal or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in tender offer for any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiatesubsidiary thereof, propose or “solicit” (as such term is used in the proxy rules any Change of the Securities and Exchange Commission) stockholders Control 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 Subsidiaries or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any convening of the assets, tangible and intangible, a stockholders’ meeting 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;its Subsidiaries; or
(fiv) arrange, enter into any arrangements or in understandings with any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement other Person with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving matter described in the Company or any Subsidiary;foregoing subparagraphs (i) through (iii).
(hb) seek, alone or The provisions of Section 5.2(a) shall not apply in concert with others, to control, change or influence respect of any action taken by the management, WP Purchaser Designees in their capacity as members of the Board or policies any proposal by a Purchaser to the Board in a manner that such Purchaser believes in good faith does not require public disclosure by the Company. In addition, notwithstanding the provisions set forth in this Section 5.2, each member of a Purchaser Group shall be entitled to make any disclosures required by applicable law. The provisions of Section 5.2(a) shall terminate on the earliest of (i) December 7, 2011, (ii) the date on which any WP Purchaser Designee is not, in either case, elected to the Board at any annual meeting of the shareholders of the Company (or at any Subsidiary, or special meeting held to elect directors in lieu of an annual meeting) and is not otherwise seek, alone or in concert with others, election or appointment appointed 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 (iii) the date of a Change of Control, (iv) the date on which the Company waives the provisions of Section 203 of the DGCL for any matter to be voted upon Person (other than the Purchasers), (v) the date of a material violation by the stockholders Company of any term of or condition set forth herein, where the Company does not cure such violation within thirty (30) days after written notice of such breach from one or more of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, planPurchasers who is actually adversely affected by such breach, or arrangement (whether written vi) the date immediately following the Stockholder Approval Outside Date if the Company fails to obtain the Stockholder Approval on or oralprior to the Stockholder Approval Outside Date (such earlier date being referred to herein as the “Standstill Termination Date”). In addition, the provisions of Section 5.2(a) inconsistent with shall not apply at any time after (A) the foregoing, Board resolves to pursue a Buyout Transaction or make or disclose any request or proposal a transaction that is contemplated by the Board to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in a Change of Control or (B) the Company having to make Board approves, recommends or accepts a public announcement regarding Buyout Transaction or a transaction that would result in a Change of Control proposed by any of the matters referred to in clauses Person (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, other than any action inconsistent with the foregoingPurchaser Group member).
Appears in 1 contract
Standstill. Executive Each Holder agrees that for a period of 18 months from (“Restricted Period”) commencing with the date of Executivethis Agreement and ending on the date that proxies for the Company’s termination 2008 annual meeting of employment for any reasonstockholders are first solicited, neither Executive such Holder nor any Affiliate of his affiliates or persons or entities acting at his direction or with his assistance willsuch Holder shall, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Company:
(a) acquire, offer or propose to acquire, solicit an or agree to acquire, or encourage or suggest to any third party that they acquire, offer to sell acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct material amount of assets of the Company or indirect beneficial interest in any subsidiary or division thereof or of any such successor or controlling person;
(b) encourage or suggest to any third party that such party (including any of its Affiliates) acquire, 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, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companysubsidiary thereof;
(bc) make, or in any way participate inparticipate, directly or indirectly, alone or encourage or suggest to any third party that they make, or in concert with othersany way participate, in any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules(“SEC”)), or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company with respect to (i) a transaction described in (a) or (b) above, (ii) any extraordinary transaction, such as a merger, reorganization or liquidation involving the Company or any Subsidiary;
subsidiary or division thereof, (ciii) initiate, propose or “solicit” (as such term is used any material change in the proxy rules present board of the Securities and Exchange Commission) stockholders directors or management of the Company or any Subsidiary for subsidiary or division thereof, including, but not limited to, any plans or proposals to change the approval number or the term of stockholder proposals whether made pursuant directors, to Rule 14a-8 remove any director or Rule 14a-4 under to fill any existing vacancies on the Exchange Actboard, except as provided in the Letter Agreement, or otherwiseto change any material term of the employment contract of any executive officer, or cause or encourage or attempt to cause or encourage others to initiate (iv) the opposition of any such stockholder proposal; or otherwise communicate with person nominated by the Company’s nominating committee, or its Subsidiaries’ stockholders or others (v) any material change in connection with the solicitation of proxies or consents or matters presented to the Company’s capital structure or its Subsidiaries’ stockholdersbusiness;
(d) make any public announcement with respect to any matter described in subparagraphs (a) and (c) above;
(e) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;foregoing; or
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action (other than an action to terminate this Agreement as provided in Section 3 below) that might result in could reasonably be expected to require the Company having to make a public announcement regarding the possibility of any of the matters referred to events described in clauses (a) through (jc) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingabove.
Appears in 1 contract
Sources: Standstill Agreement (Integrated Silicon Solution Inc)
Standstill. Executive Each member of the Shareholder Group agrees that for a period other than as may be required by applicable law, order or regulation, during the Standstill Period, he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for any reasonAffiliates or agents or other persons acting on his or its behalf not to, neither Executive nor any of and will cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own, or have the right to acquire beneficial ownership of, more than the acquisition in the aggregate of less than one-half of one percent 5.01% of the outstanding voting securities Common Stock (based on the latest annual or quarterly report of the CompanyCompany filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 3(d) hereof or acquired in the future (subject to the limitations set forth in Section 8(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the SubsidiariesCommon Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by purchasethis Agreement;
(f) effect or seek to effect (including, exchange without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make any publicly disclosed proposal, public statement, public inquiry serve on the board of directors or public disclosure participate in the governance of any intentionCompetitor;
(j) engage in any short sale or any purchase, plansale or grant of any option, warrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(k) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jl) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ from engaging in any lawful act in his capacity as a director of the Company.
Appears in 1 contract
Sources: Group Agreement (Ruby Tuesday Inc)
Standstill. Executive agrees Each such Other Partner agrees, and shall cause its related Individual Partner to agree, that for a period of 18 months from during the date of Executive’s termination of employment for any reasonNon-Solicitation Period, neither Executive nor any of his affiliates or persons or entities acting such Other Partner shall not, and shall cause its related Individual Partner not to, except at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members specific written request of the BoardBoard of Directors of the General Partner:
(1) engage in or propose, directly or indirectly, be a Participant in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer Entity that engages in 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 otherwiseproposes, any direct or indirect beneficial interest in material transaction between the Partnership and/or any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities Subsidiary of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
Partnership (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders successors), on the one hand, and such Other Partner, its related Individual Partner or make any public statement Entity in which Other Partner or its related Individual Partner is a Participant, on the other hand;
(2) acquire any Equity Securities of the Partnership and/or any Subsidiary of the Partnership (or any of their respective successors) (other than Equity Securities issued to such Other Partner or its related Individual Partner by the Partnership or issued to such Other Partner or its related Individual Partner by the Partnership upon exercise of options issued to such Other Partner by the Partnership), or be a Participant in any Entity that acquires any Equity Securities of the Partnership and/or any Subsidiary of the Partnership (or any of their respective successors);
(3) solicit proxies, or be a Participant in any Entity that solicits proxies, or become a Participant in any solicitation of proxies, with respect to the election of directors of the General Partner, the Partnership and/or any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving Subsidiary of the Company Partnership (or any Subsidiary;
(hof their respective successors) seek, alone in opposition to the nominees recommended by the board of directors 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 similar governing body of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillsuch Entity; or
(j4) announce an intention directly or indirectly, engage in or participate in any other activity that would be reasonably expected to do, result in a change of control of the Partnership and/or any Subsidiary of the Partnership (or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) their respective successors). The foregoing provisions of this Standstill, subparagraph (vi) shall not be construed to prohibit or take any action that might result restrict the manner in the Company having to make a public announcement regarding any which each such Other Partners or its related Individual Partner exercises each such Other Partner’s or its related Individual Partner’s voting rights in respect of equity securities of the matters referred to Partnership acquired in clauses (a) through (j) a manner that is not a violation of the terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAgreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Bumble Bee Capital Corp.)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonCooperation Period, neither Executive nor any of his affiliates or persons or entities each ▇▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (and under common control) Affiliates and its and their respective Representatives acting at his direction or on their behalf (collectively with his assistance willthe ▇▇▇▇▇▇▇ Parties, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) to not, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to asprior written consent, invitation, or authorization of the “Standstill”):Company or the Board:
(ai) acquire, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly by purchase or indirectlyotherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of or economic exposure to any Voting Securities (as defined below) or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the ▇▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of, or aggregate economic exposure to, more than 9.9% of the Company Common Shares outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities a meeting of the Company;
’s stockholders or act by written consent in lieu of a meeting (bor the setting of a record date therefor), (B) make, or in any way participate in, directly or indirectlyseek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any stockholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board, or (E) conduct a referendum of stockholders of the Company; provided that nothing in this Agreement will prevent the ▇▇▇▇▇▇▇ Parties or their Affiliates from taking actions in furtherance of identifying any Replacement New Director in accordance with Section 1(d), as applicable;
(iii) make any request for stock list materials or other books and records of the Company or any of its subsidiaries under Section 220 of the Delaware General Corporation Law or any other statutory or regulatory provisions providing for stockholder access to books and records;
(iv) engage in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange ActAct (as defined below)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities directors of the Company or any Subsidiary;
(c) initiate, propose other matter or proposal relating to the Company or become a “solicitparticipant” (as such term is used defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the proxy rules Exchange Act) in any such solicitation of the Securities and Exchange Commissionproxies or consents;
(v) stockholders of make or submit to 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 Actits Affiliates any proposal for, or otherwiseoffer of (with or without conditions), 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, either alone or in concert with others, any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of all or substantially all assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or any of the Restricted Persons (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company);
(vi) make any public proposal with respect to (A) any change in the number 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 capitalization, capital allocation policy or dividend policy of the Company, (C) any other change to the Board or the Company’s management or corporate or governance structure, (D) any waiver, amendment or modification to the Company’s Articles of Incorporation or the Bylaws, as amended, (E) causing the Company Common Shares to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing the Company Common Shares to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the giving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (B) conducting any type of referendum relating to the Company, other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement;
(viii) form, join or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act, with respect to any Voting Securities, other than solely with Affiliates of the ▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(ix) enter into a voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement (B) solely with Affiliates of the ▇▇▇▇▇▇▇ Parties or (C) granting proxies in solicitations approved by the Board;
(x) 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 includes, relates to, or derives any significant part of its value from a decline in the market price or value of the Voting Securities 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 Voting Securities held by a Restricted Person to any Third Party;
(ixii) institute, solicit 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 accordance with and subject to Section 9, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with a validly issued legal process;
(xiii) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xiv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause) or the Committee Charter, in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal; provided that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of the following: (A) any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the New Directors to the Board or the Committee in accordance with Sections 1(a) and 1(f), form the Committee in accordance with Section 1(f), include the New Directors in the slate of nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to the 2024 Annual Meeting in accordance with Section 1(b), or issue the Press Release in accordance with Section 3) upon five business days’ written notice by any of the ▇▇▇▇▇▇▇ Parties to the Company if such breach has not been cured within such notice period, provided that the ▇▇▇▇▇▇▇ Parties are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (B) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company, (y) one or more definitive agreements providing for the acquisition by the Company or its subsidiaries of one or more businesses or assets (excluding, for the avoidance of doubt, acquisitions of raw materials, equipment or facilities in ordinary course business operations) having an aggregate value exceeding 25% of the market capitalization of the Company during the Cooperation Period or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the Company Common Shares (including on an as-converted basis, and including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, tangible and intangible, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be counted toward this clause (z)); and (C) the commencement of any Subsidiary tender or exchange offer (iiby any person or group other than the ▇▇▇▇▇▇▇ Parties or their Affiliates) direct which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or indirect rightsgroup of more than 50% of the Voting Securities, warrants where the Company files with the SEC a Schedule 14D-9 (or options amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to acquire Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any assets tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 2(c)) will prohibit or restrict any of the Restricted Persons from (I) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or such Third Party, (II) making any Subsidiary;
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 (fso long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (III) arrangegranting 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 any way participateaccordance with the terms of the custody or prime brokerage agreement(s), as applicable, (IV) negotiating, evaluating and/or trading, directly or indirectly, in any financing for index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the purchase of any voting performance of, but not primarily consist of, securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or (V) privately communicating with the Board or the Company’s senior executives, or members of the investor relations team made available for communications involving broad-based groups of investors (including through participation in investor meetings and/or conferences), regarding any Subsidiary;
(g) otherwise actmatter, alone or in concert with othersprivately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be expected to seek to propose to require public disclosure of such communications or requests by the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingRestricted Persons.
Appears in 1 contract
Sources: Cooperation Agreement (Biomarin Pharmaceutical Inc)
Standstill. Executive agrees that If this Agreement is terminated, then, for a period of 18 months from two years after the date of Executive’s termination such termination, IP and each of employment for any reasonits successors or assigns will not, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(ai) acquire, offer or propose or otherwise seek to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersby merger, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, beneficial ownership of any assets or in excess of 1% of any class of securities of UCC or its Affiliates or any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire (through purchase, exchange, conversion or securities convertible into otherwise) any assets or exchangeable for, in excess of 1% of any voting class of securities of the Company UCC or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits Affiliates;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is used terms are defined in Rule 14a-1 of Regulation 14A promulgated by the proxy rules SEC as of the Securities and Exchange Commission promulgated date hereof, disregarding clause (iv) of Rule 14a-1(1)(2), but including any solicitation exempted pursuant to Section 14 Rule 14a-2(b)
(1) to vote (including by the execution of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesactions by written consent), or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company or any SubsidiaryUCC;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwisein any way participate in a call for, any meeting of shareholders of UCC (or cause or encourage or attempt take any action with respect to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersshareholders acting by written consent);
(div) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company UCC; or
(v) otherwise act to control or influence, or seek to control or influence, UCC or the Subsidiaries;
(e) acquiremanagement, offer to acquire Board of Directors, policies or agree to acquireaffairs of UCC, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwiseincluding without limitation, (iA) making any of the assets, tangible and intangible, of the Company offer or any Subsidiary or (ii) direct or indirect rights, warrants or options proposal to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company UCC or any Subsidiary;
(g) otherwise actof its Affiliates or soliciting or proposing to effect or negotiate any form of business combination, alone restructuring, recapitalization or in concert with othersother extraordinary transaction involving UCC, to seek to propose to the Company or any Subsidiary its Affiliates or any of their respective stockholders securities or make any public statement with respect to any mergerassets, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or seeking board representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member directors or a change in the composition or size of the BoardBoard of Directors of UCC, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iC) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose making any request to amend or proposal to amend, waive or terminate any provision of this Standstill Section 8.09, (D) disclosing any intent, purpose, plan or seek permission to or make any public announcement proposal with respect to matters covered by this Section 8.09 or UCC, its Affiliates or the boards of directors, management, policies or affairs or securities or assets of UCC or its Affiliates that is inconsistent with this Section 8.09, including an intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this StandstillSection 8.09, or take any action that might result in the Company having could require UCC or any of its Affiliates to make a any public announcement regarding disclosure relating to any such intent, purpose, plan, proposal or condition, or (E) assisting, advising or encouraging any person with respect to, or seeking to do, any of the matters referred foregoing; provided, however, that this Section 8.09 shall not apply if UCC does not pay any portion of the Termination Fee when due or if IP terminates this Agreement as a result of a willful breach of this Agreement by UCC; provided, further, that, if this Section 8.09 is effective against IP (and each of its successors and their respective Affiliates) during any such two-year period after the date of any such termination, and either (x) UCC shall have entered into an agreement with respect to any transaction that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of either the voting securities of UCC then outstanding or the assets of UCC and the UCC Subsidiaries, taken as a whole or (y) any Person or "group" (as defined in clauses (a) through (jSection 13(d)(3) of the Exchange Act) (other than UCC or any of its Affiliates (excluding, for this Standstillpurpose, UCC's management acting independently of UCC)) shall have commenced any tender or exchange offer that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of the voting securities of UCC then outstanding which offer is recommended by UCC's Board of Directors to its shareholders, then at the time of the public announcement of such agreement or of the commencement of such offer, as applicable, this Section 8.09 shall terminate and have no further force or effect and there shall be no rights, liabilities or obligations under this Section 8.09 on the part of IP, UCC, MergerSub, or otherwise intentionally takeany of their respective officers, directors, shareholders, agents or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAffiliates.
Appears in 1 contract
Sources: Merger Agreement (Union Camp Corp)
Standstill. Executive agrees that for a period Each of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardShareholder Group agrees that, directly during the Standstill Period, he or indirectlyit will not, in any manner (the obligations pursuant to this Section 13 being referred to asand he or it will cause each of such person's Affiliates or agents or other persons acting on his or its behalf not to, the “Standstill”):and will cause his or its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities shares of the CompanyCommon Stock;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “"partnership, limited partnership, syndicate or other group” " within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any "solicitation" of any "proxy" within the Subsidiariesmeaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a "participant" in any contested "solicitation" for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a "solicitation" or acting as a "participant" in support of all of the nominees of the Board at the 2011 Annual Meeting or the 2012 Annual Meeting as set forth in this Agreement;
(e) acquireseek, offer in any capacity, to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company's shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by purchasethis Agreement;
(f) effect or seek to effect, exchange in any capacity (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit the Shareholder Group from (i) making public statements (including statements contemplated by Rule 14a-1 (1) (2) (iv) under the Exchange Act), (ii) engaging in discussion with other stockholders or (iii) soliciting, or encouraging or participating in the solicitation of, proxies or consents with respect to voting securities of the Company (so long as such discussions are in compliance with Section 5(c) hereof) in each case with respect to any transaction that has been publicly announced by the Company involving (1) the recapitalization of the Company, (2) an acquisition, disposition or sale of assets or a business by the Company where the consideration to be received or paid in such transaction requires approval by the holders of the Common Stock or (3) a change of control of the Company.
Appears in 1 contract
Standstill. Executive agrees that for For a period of 18 months five (5) years from the date Closing Date (as such term is defined in Section 2(a)(i) of Executive’s termination of employment for any reasonthe Stock Purchase Agreement), neither Executive nor LDC shall not, and shall not permit any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates to, directly or indirectly, in any manner (i) without the obligations pursuant to this Section 13 being referred to as, prior written consent of the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersCompany, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, agree to acquire or securities convertible into or exchangeable for, offer to acquire beneficial ownership of any voting securities of the Company or direct or indirect rights or options to acquire such beneficial ownership (including, without limitation, any Subsidiary, other than the voting trust certificates representing such securities) if such acquisition would result in the aggregate beneficial ownership by LDC and all Affiliates of less than one-half LDC of one voting securities having voting power equal to or in excess of fifteen percent (15%) of the outstanding then aggregate voting securities power of the Company;
, (bii) enter, propose to enter into, solicit or support any merger or business combination or change of control or other similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the business or assets of the Company or any of its subsidiaries other than in the ordinary course of business, (iii) initiate or propose any matter for submission to a vote of the shareholders of the Company or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise or influence any person with respect to the voting of, the Common Stock or any other voting securities of the Company or request or take any action to obtain any list of shareholders of the Company for such purposes, (iv) form, join or in any way participate in any group (other than a group composed solely of LDC and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to the Common Stock or any other voting securities of the Company that would be required under Section 13(d) of the Exchange Act to file a Schedule 13D with respect to such voting securities, (v) deposit any shares of Common Stock or any other voting securities of the Company in a voting trust or enter into any voting agreement or arrangement with respect thereto, (vi) seek representation on the Board (other than as contemplated by Section 7(b) of the Stock Purchase Agreement), the removal of any directors from the Board or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 3.2, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of the foregoing, (x) assist, advise, encourage or influence in any manner whatsoever negotiate with any person with respect to, or entity seek to do, any of the foregoing or (xi) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company. Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its Affiliates from responding to any inquiries from any stockholders of the Company as to LDC’s or any such Affiliate’s intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by LDC or any Subsidiary;
(c) initiate, propose or “solicit” (such Affiliate so long as such term response is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate consistent with the Company’s terms of this Agreement, (ii) prohibit the purchase or its Subsidiaries’ stockholders other acquisition of beneficial ownership of Common Stock or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any other voting securities of the Company in compliance with Section 3.2(i) or (iii) restrict the Subsidiaries;
(eright of any director on the Board designated by LDC as contemplated by Section 7(b) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, Stock Purchase Agreement to vote on any matter as such designee believes appropriate in light of his duties as a director of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets the manner in which such designee may participate in his capacity as a director of the Company in deliberations or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase discussions at meetings of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination as a member of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingcommittee thereof.
Appears in 1 contract
Standstill. Executive agrees that From and after the date of this Agreement and for a period of 18 months from five years, none of the date of Executive’s termination of employment for any reason, neither Executive Shareholders nor any of his affiliates or persons or entities acting at his direction or with his assistance willtheir Related Persons, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):shall:
(a) acquire, offer solicit proxies or propose to acquire, solicit an offer to sell be or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control become a member of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” a group which solicits proxies (as such used herein, the term is used "proxy" shall have the meaning provided in the proxy rules of Regulation 14A promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange Act) for the purpose of proxies or consents to vote, whether subject to or exempt (i) removing from the proxy rulesoffice, or seek nominating or voting for a candidate to adviserun in opposition to, encourage or influence in any manner whatsoever any person who is serving as a director of UNIT at the date of this Agreement or entity with respect any person who may hereafter be elected to the voting board of any voting securities directors of UNIT as a result of the Company nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement, or (ii) vote against or otherwise opposing any Subsidiary;matter which has been proposed or recommended by the board of directors of UNIT which is then comprised of persons at least a majority of which are persons serving as directors of UNIT at the date of this Agreement and any persons who may hereafter be elected to the board of directors of UNIT based upon the nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement; or
(cb) initiatepermit any entity under his, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s her or its Subsidiaries’ stockholders control (including but not limited to subsidiaries and employee pension, profit sharing or others in connection with the solicitation of proxies or consents or matters presented to the Company’s other trusts under his, her or its Subsidiaries’ stockholders;
(dinvestment management control) form, join to acquire or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, (i) any of the assets, tangible and intangible, of the Company UNIT Common Stock or any Subsidiary option to purchase UNIT Common Stock; or
(c) acquire or (ii) direct or indirect rights, warrants or options offer to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participateagree to acquire, directly or indirectly, by purchase or otherwise shares of UNIT Common Stock or any option to purchase UNIT Common Stock by any Person; or
(d) finance or arrange the financing or participate in the financing of the acquisition of UNIT Common Stock by any financing Person; or
(e) join or permit any Related Person of its to join a partnership, limited partnership, syndicate, or other group for the purchase purpose of any voting securities acquiring or securities convertible holding of UNIT Common Stock within the meaning of Section 13(d) of the Exchange Act; or
(f) initiate, propose or exchangeable into or exercisable otherwise solicit shareholders for any voting securities matter at any time, or assets induce or attempt to induce any other Person to initiate any stockholder proposal or a tender offer for shares of the Company UNIT Common Stock or any Subsidiary;change of control of UNIT, or for the purpose of convening a stockholders' meeting of UNIT; or
(g) otherwise actother than in connection with the Contemplated Transaction, alone acquire or in concert with otherspermit any entity under his, her or its control (including but not limited to seek subsidiaries and employee pension, profit sharing or other trusts under his, her or its investment management control) to propose acquire, by purchase or otherwise, more than 5% of any class of equity securities of any entity which, prior to the Company or any Subsidiary or any time such entity acquires more than 5% of their respective stockholders or make any public statement with respect to any mergersuch class, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving is the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiarybeneficial owner of, or otherwise seek, alone or in concert with others, election or appointment intends to or representation on, or to nominate or propose the nomination acquire more than 5% of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillUNIT Common Stock; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Unit Corp)
Standstill. Executive Until the applicable Standstill Termination Date, each Värde Party agrees that for a period such Värde Party and its Affiliates who hold any shares of 18 months from Preferred Stock, any Common Shares or any shares of Common Stock issued pursuant to the date of Executive’s termination of employment for any reasonOctober Transaction Agreement will not, neither Executive nor any of his affiliates except as expressly approved or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority Board of all members of the BoardDirectors, directly or indirectly, through their subsidiaries, Affiliates or any other Persons, or in concert with any manner (Person, or as part of a group that is deemed to be a “person” under Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, Exchange Act:acquire or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct ownership, including, but not limited to, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), of any shares of Common Stock or indirect beneficial interest other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, other than (i) the acquisition of the Exchanged Shares pursuant to this Agreement, (ii) the acquisition of the Underlying Shares upon any conversion of the Exchanged Series E Shares or upon payment of any dividends thereon, any increase of the liquidation preference or convertible amount with respect to the Preferred Stock or any adjustments to the conversion price or conversion ratio or (iv) receiving any shares of securities generally distributed by the Company or an acquirer or target of the Company to holders of Common Stock or Preferred Stock;
(a) make or participate in any solicitation of proxies (as such term is defined in Rule 14a-1 under the Exchange Act) or consents, whether or not such solicitation is exempt under Rule 14a-2 under the Exchange Act, with respect to any matter from any holder of shares of Common Stock or other voting securities or direct or indirect rights, warrants or options to acquireof the Company, or any securities exercisable or exchangeable for or convertible into shares of Common Stock or exchangeable forother voting securities of the Company, or make any communication exempted from the definition of solicitation by Rule 14a-1(1)(2)(iv) under the Exchange Act (other than communications in the ordinary course of business on a confidential basis among such Värde Party and its Affiliates);
(b) other than through the Company or Board of Directors, call or request any special meeting of holders of Common Stock or other voting securities of the Company or submit or propose the submission of any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent matter to a vote of the outstanding holders of Common Stock or other voting securities of the Company;
(bc) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of other than through the Company or Board of Directors, effect or agree, offer, seek or propose to effect any Subsidiary;
(c) initiatebusiness combination, propose merger, tender offer, sale or “solicit” (as such term is used in the proxy rules acquisition of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any substantially all of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolutionrecapitalization, liquidation, recapitalization dissolution or other extraordinary transaction involving the Company or any Subsidiaryof its Subsidiaries;
(hd) seekotherwise seek or propose to influence, alone control or in concert with otherschange the Board of Directors, to control, change or influence the management, the Board policies, affairs, strategy or policies organizational documents 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 its Subsidiaries by way of any candidate to, the Board public communication or the removal other broadly disseminated communication to holders of any member Common Stock or other voting securities of the Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany;
(ie) make enter into any publicly disclosed proposaldiscussions, public statementnegotiations, public inquiry agreements, arrangements or public disclosure of any intention, planunderstandings with, or arrangement (whether written intentionally assist, advise or oral) inconsistent with the foregoingencourage, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement other Person with respect to any provision of matter described in the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under foregoing clauses (a) through (je) of this Standstill, or Section 5.7;
(f) intentionally take any action that might result in would reasonably be expected to cause or require the Company having or such Värde Party or any of its Affiliates to make a any public announcement regarding or other public disclosure with respect to any of the matters referred described in this Section 5.7;
(g) intentionally publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 5.7; or
(h) without limitation of Section 5.7(a), acquire or offer or agree to acquire, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), of any shares of Common Stock or other voting securities of the Company, or any securities or other rights exercisable or exchangeable for or convertible into shares of Common Stock or other voting securities of the Company, in each case, that would result in the Värde Parties and their Affiliates collectively owning, beneficially or otherwise, greater than 50% of the outstanding shares of Common Stock, other than (i) the acquisition of the Exchanged Shares pursuant to this Agreement, (ii) the acquisition of the Underlying Shares upon any conversion of the Exchanged Series E Shares or upon payment of any dividends thereon, any increase of the liquidation preference or convertible amount with respect to the Preferred Stock or any adjustments to the conversion price or conversion ratio or (iv) receiving any shares of securities generally distributed by the Company or an acquirer or target of the Company to holders of Common Stock or Preferred Stock; provided, however, that nothing in this Section 5.7 will limit (i) any Värde Party’s ability to vote or, subject to the other restrictions set forth herein and in the Certificates of Designation, the October Transaction Agreement and the Securities Purchase Agreement, transfer its Securities or any shares of Preferred Stock or Common Stock issued pursuant to the October Transaction Agreement or the Securities Purchase Agreement or otherwise exercise its rights under this Agreement, the Certificates of Designation, the October Transaction Agreement or the Securities Purchase Agreement, (ii) the ability of any director designated by the Värde Parties pursuant to this Agreement or the Certificates of Designation to vote, exercise his or her fiduciary duties as or otherwise fully participate as a member of the Board of Directors, (iii) the ability of the Värde Parties to assert or protect their rights as a stockholder of the Company in the event of the commencement of any bankruptcy or similar proceeding or assignment for the benefit of creditors involving the Company or (iv) the ability of the Värde Parties to exercise their rights to appoint, remove or cause the resignation of directors pursuant to this Agreement and the Certificates of Designation. In the event that, prior to the Standstill Termination Date applicable to Section 5.7(i), any Värde Party or its Affiliate makes any acquisition of securities of the Company that is permitted under Section 5.7(i) (other an acquisition described in clauses (a) through (ji)-(iv) of this StandstillSection 5.7(i)), such Värde Party shall give (or otherwise intentionally takeshall cause its Affiliate to give) notice to the Company of such acquisition, or solicitincluding the number and type of securities acquired, or cause or encourage others to take, any action inconsistent with no later than the first Business Day after the date of such acquisition. Notwithstanding the foregoing, in the case of a Värde Party that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Värde Party’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Värde Party’s assets and barriers are in place to prevent such portfolio managers from obtaining such knowledge, the covenant set forth in Section 5.7(a) shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the securities covered by this Agreement, the October Transaction Agreement or the Securities Purchase Agreement; provided, that such assets managed by other managers not subject to such covenant does not exceed 1% of the Common Stock then issued and outstanding. The parties agree that the covenants and other terms of Section 4.2 of the Securities Purchase Agreement are hereby superseded in their entirety from and after the Closing by the foregoing provisions this Section 5.7.
Appears in 1 contract
Standstill. Executive agrees that for a period (a) During the Standstill Period, the Atairos Stockholder shall not, and shall cause each member of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardAtairos Group not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlymanner, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, take any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than following actions without the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities prior written consent of the Company;:
(bi) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of proxies (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant SEC but without regard to Section 14 of the Exchange Actexclusion set forth in Rule 14a-1(l)(2)(iv)) 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 for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company, 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 or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any Subsidiary;
(c) initiate, propose securities convertible or “solicit” (as exchangeable into or exercisable for any such term is used securities in the proxy rules of the Securities and Exchange Commission) stockholders of the Company any voting trust or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actsimilar arrangement, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate subject 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 to any arrangement or agreement with respect to the Subsidiariesvoting thereof, except as expressly permitted by this Agreement;
(eiii) acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, (i) any of the assets, tangible and intangible, of the Company securities or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangeof its Subsidiaries, or in any way participatewarrant, directly option or indirectly, in other right to acquire any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting such securities or assets of the Company or any Subsidiaryrights 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 pending 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;
(giv) otherwise acteffect or seek to effect, alone offer or propose to effect, cause or participate in, or in concert with others, any 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 Subsidiary of its Subsidiaries or joint ventures or any of their respective stockholders securities (each, an “Extraordinary Transaction”), 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 Subsidiaryan Extraordinary Transaction;
(hv) seek(A) call or seek to call any meeting of stockholders of the Company, alone or including by written consent, (B) seek representation on the Board of Directors, except in concert accordance with othersSection 3.01 so long as such section is in full force and effect, to control(C) seek any other material, non-ordinary course change or influence in the Company’s management, the Board business or policies of the Company or any Subsidiarycorporate structure, 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 (D) seek the removal of any member of the BoardBoard of Directors (other than any Atairos Designee), (E) solicit consents from stockholders or propose any matter otherwise act or seek to be voted upon act by written consent with respect to the Company, (F) conduct a referendum of stockholders of the Company or (G) make a request for any Subsidiarystockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(ivi) 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 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 equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) make any publicly disclosed proposalrequest to amend or waive any provision of this Section 2.02(a);
(viii) make any public disclosure, public statementannouncement or statement regarding any intent, public inquiry purpose, plan or public disclosure proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any intention, plan, of its securities or arrangement (whether written assets or oral) 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 make or disclose any request or proposal to amendadvise, waive or terminate any provision of this Standstill knowingly assist, knowingly encourage or seek permission to persuade any Third Party to take any action or make any public announcement statement with respect to any provision of the Standstill; orforegoing.
(jb) announce an intention The foregoing provisions of Section 2.02(a) shall not be deemed to do, prohibit the Atairos Stockholder or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of its Affiliates from communicating privately with the actions restricted Company’s directors, officers or prohibited under clauses advisors, on topics related to the Company and its business, including strategic considerations, so long as such communications (ax) through do not include any proposals requiring the action of the Board of Directors in connection therewith and (jy) 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 that, if consummated, would result in a 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 Standstill, or take Section 2.02 shall limit any action that might 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 and the 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 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 having to make (i) institutes a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstillvoluntary proceeding, or otherwise intentionally takebecomes the subject of an involuntary proceeding which involuntary proceeding is not dismissed within 60 days, under any bankruptcy act, insolvency law or solicitany law for the relief of debtors, (ii) has a receiver appointed to manage its affairs, which appointment is not dismissed, vacated or cause stayed within 60 days or encourage others to take, any action inconsistent with (iii) executes a general assignment for the foregoingbenefit of creditors.
Appears in 1 contract
Standstill. Executive agrees that Except for a period securities acquired pursuant to the exercise of 18 months from an option to purchase common stock of the date of Company issued in connection with the Executive’s termination of employment for any reasonby the Company, neither the Executive nor any of his affiliates or persons representatives of the Executive (acting on behalf of or entities acting at his direction in concert with the Executive, any of the Executive’s affiliates or with his assistance any of the Executive’s other representatives) will, unless specifically invited at any time during the two (2) year period commencing on the Resignation Date (or, at any time during such period, assist, advise, act in writing by the Board, acting by resolution approved by a majority of all members of the Boardconcert or agreement or participate with or encourage others to), directly or indirectly: (i) acquire or agree, in any manner (the obligations pursuant to this Section 13 being referred to asoffer, the “Standstill”):
(a) acquire, offer seek or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition agreement or control of another person business combination or entity, or otherwisein any other manner, any direct ownership, including, but not limited to, beneficial ownership, as defined in Rule 13d-3 under the Exchange Act, of any of the assets, businesses or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rightssubsidiary thereof, warrants or any rights or options to acquire such ownership (including from any assets of the Company or any Subsidiary;
third party); (fii) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable offer to enter 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, consolidationrecapitalization, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization restructuring or other extraordinary transaction with the Company or any direct or indirect subsidiary thereof; (iii) initiate any stockholder proposal or the convening of a stockholder’s meeting of or involving the Company or any Subsidiary;
direct or indirect subsidiary thereof; (hiv) seeksolicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), alone whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of the Company or any securities convertible into, exchangeable for or exercisable for (in concert with otherseach 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; (v) otherwise seek or propose to controlinfluence, advise, change or influence control the management, the Board board of directors, governing instruments, affairs or policies of the Company or any Subsidiarydirect or indirect subsidiary thereof; (vi) enter into any discussions, negotiations, agreements, arrangements or otherwise seek, alone or in concert understandings with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement person with respect to any provision of matter described in the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under foregoing clauses (ai) through (jvi); or (vii) of this Standstillother than as required by law, make any public disclosure, or take any action that might result in could reasonably be expected to require the Executive or the Company having to make a public announcement regarding disclosure, with respect to any of the matters referred to set forth in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonThe Stockholder shall not, neither Executive nor shall any of his affiliates its directors, officers, employees, agents, advisors or persons other representatives (“Representatives”) on its behalf, without the prior written consent of Exar or entities acting at his direction its Board of Directors (or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”duly empowered committee thereof):
(a) during the Lock-Up Period:
(1) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company Exar or any SubsidiarySubsidiary thereof, or of any successor to or person in control of Exar, or any assets (other than the acquisition assets in the aggregate ordinary course of less than one-half business) of one percent Exar or any Subsidiary or division thereof or of any such successor or controlling person; provided, however, that the outstanding Stockholder may acquire voting securities of Exar, or any Subsidiary thereof, or of any successor to or person in control of Exar so long as its aggregate beneficial ownership of Exar, such Subsidiary or such Person does not at any time during the CompanyLock-Up Period exceed 19% of the Exar voting securities (on a fully diluted basis assuming conversion or exercise of all outstanding Exar Derivative Securities); or
(2) or request Exar or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5(a); and
(b) during the period commencing on the Closing Date and ending on the date that is the two (2)-year anniversary of the Effective Time of the Merger:
(1) subject to the Stockholder’s right to designate a representative for nomination by the Board of Directors for election as a director pursuant to Section 7(b) below, nominate any person to the Board of Directors of Exar;
(b2) call or attempt to call a special meeting of the stockholder of Exar;
(3) make, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesSEC), or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of Exar (including, without limitation, making any public statement in favor or support of any proposal not approved by the Company or any SubsidiaryBoard of Directors of Exar);
(c4) initiatemake any public announcement with respect to, propose or “solicit” submit a proposal for, or offer of (as such term is used in the proxy rules of the Securities and Exchange Commissionwith or without conditions) stockholders of the Company any extraordinary transaction (including a tender offer) involving Exar or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 its securities or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersassets;
(d5) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act Act, in connection with respect to any voting securities of the Company or the Subsidiariesforegoing;
(e6) acquire, offer to acquire request Exar or agree to acquireany of its Representatives, directly or indirectly, alone to amend or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5(b).
Appears in 1 contract
Standstill. The Executive agrees that for a period of 18 months from three years following the date of Executive’s termination separation of employment for any reasonemployment, neither the Executive nor any of anyone acting on his affiliates or persons or entities acting at his direction or with his assistance willbehalf, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquireattempt to facilitate (i) the acquisition of securities, assets or indebtedness of the Company or any of its affiliates, (ii) any tender offer or propose business combination involving the Company, its affiliates or any of their respective assets, (iii) any recapitalization, restructuring or other extraordinary transaction with respect to acquire, solicit an offer to sell the Company 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 entityits affiliates, or otherwise, (iv) any direct solicitation of proxies or indirect beneficial interest in consents to vote any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
its affiliates; (b) make, form or participate in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity group with respect to the voting Company’s securities or act in concert with any person in respect 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;
securities; (d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gc) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any 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 control over 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 seek a position on the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
; (id) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement discussions or understanding arrangements with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement third party regarding any of the matters referred above; or (e) request that the Company amend or waive any of the above restrictions. Notwithstanding the foregoing, the Company hereby agrees that this provision shall not apply to the following: (1) the Executive’s acquisition of any security, asset, or indebtedness of the Company pursuant to the terms of his employment, the Company’s benefit plans or this Agreement; (2) the purchase, sale or transfer in clauses the ordinary course by the Executive or anyone acting on his behalf after the date of the Executive’s separation of employment (a) through (jand not pursuant to this Agreement or the Company’s benefit plans) of this Standstillvoting securities of the Company so long as, immediately after any such purchase, sale or transfer, the Executive and everyone acting on his behalf do not collectively beneficially own more than one percent of any outstanding class of voting securities or securities convertible into voting securities of the Company; provided that, for the avoidance of doubt, any such securities or securities convertible into voting securities of the Company which are beneficially owned by any applicable non-affiliated third-parties described in clause (4) below shall not be taken into account with respect to determining the one percent cap; (3) the exercise by the Executive or anyone acting on his behalf of any voting rights available to the Executive or anyone acting on his behalf that are also available to Company stockholders generally pursuant to any transaction described above, provided that the Executive or anyone acting on his behalf has not then either directly, indirectly, or otherwise intentionally takeas a member of a group, made, effected, initiated, solicited proxies on behalf of, or solicitcaused such transaction to occur or otherwise violated these provisions; and (4) any actions or transactions taken by a non-affiliated third-party with respect to the following that are maintained by such non-affiliated third party: mutual funds, private equity funds, index funds, RTFs, and similar passive investments for which the Executive has invested in; provided that the Executive has not then either directly, indirectly, or cause as a member of a group made, effected, initiated or encourage others caused such action or transaction to takeoccur, or any action inconsistent with actions taken by the foregoingExecutive or anyone acting on his behalf to invest in, sell or transfer such passive investments maintained by such non-affiliated third-parties.
Appears in 1 contract
Sources: Transition Agreement (Laboratory Corp of America Holdings)
Standstill. Executive agrees that for a period Except as otherwise provided in this Agreement, without the prior written consent of 18 months from the date of Executive’s termination of employment for any reasonTrustees (or following the Distribution Time, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board), acting the Stockholders and the Stockholder Designees shall not, and shall cause their Affiliates and controlled Associates not to, directly or indirectly (in each case, except as permitted by resolution approved this Agreement):
(i) other than pursuant to Sections 1(a) and 1(b) of this Agreement, nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors are to be elected; (ii) initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) initiate, encourage or participate in any "withhold" or similar campaign with respect to any Stockholder Meeting;
(b) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire or otherwise beneficially own (except by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardTrust or TPL Corp generally on a pro rata basis), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining a group, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company Trust or TPL Corp (other than through a broad-based market basket or index) or any Subsidiaryvoting rights decoupled from the underlying voting securities which would result in (i) Horizon having ownership or control of, or other beneficial ownership interest in, 23.5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the "Horizon Cap"), (ii) SoftVest having ownership or control of, or other beneficial ownership interest in, 4.0% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the "SoftVest Cap") or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the "Mission Cap", and each of the Horizon Cap, the SoftVest Cap and the Mission Cap, individually, an "Ownership Cap"); provided, however, that, subject to Section 3(c), in the event that the Trust or TPL Corp (A) acquires through share purchases Sub-share Certificates or shares of the Common Stock or (B) undertakes a reverse share split, and any of such actions reduces the number of securities of the Trust or TPL Corp outstanding and thereby increases the proportionate number of Sub-share Certificates or shares of Common Stock that a Stockholder has ownership or control of, or otherwise beneficially owns, to a proportion of Sub-share Certificates or shares of the Common Stock that is equal to or greater than the applicable Ownership Cap for such Stockholder (such event, a "Share Reduction Event"), then such Stockholder shall not be deemed to have acquired or otherwise beneficially own an amount of Sub-share Certificates or shares of the Common Stock that is greater than the number of shares permitted pursuant to such Stockholder's applicable Ownership Cap (such amount of securities in excess of a Stockholder's Ownership Cap, the "Excess Shares") in violation of this Section 3(b) as a result of such Share Reduction Event; provided, further, that such Stockholder shall divest its Excess Shares within a reasonable time period (but in any event, within 30 calendar days of becoming aware of such Share Reduction Event) so that such Stockholder no longer has ownership or control of, or otherwise holds a beneficial ownership interest in, such Excess Shares;
(c) sell or transfer shares of Common Stock, other than in open market sale transactions where the acquisition identity of the purchaser or transferee is not known and in underwritten widely dispersed public offerings, to any Third Party that (i) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of less than one-half of one percent 5.0% or more of the shares of Common Stock outstanding voting at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5.0% or more of the shares of Common Stock outstanding at such time, in each case, unless such Third Party is a passive investor that has not been a "reporting person" on a Schedule 13D and would not, in connection with purchasing or holding of securities of the CompanyTPL Corp, be required to file a Schedule 13D;
(bd) make(i) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person group or entity with respect to the voting agreement of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act kind with respect to any voting securities of the Company Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SubsidiariesSEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Distribution Time), or (ii) deposit any voting securities of the Trust or TPL Corp in any voting trust or subjecting any Trust or TPL Corp voting securities to any arrangement or agreement with respect to the voting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise actseek publicly, alone or in concert with others, to seek to propose amend any provision of the Governance Documents;
(f) demand an inspection of the Trust's or TPL Corp's books and records;
(g) make any (i) public or private (other than to the Company Trustees or any Subsidiary or any of their respective stockholders or make any public statement the Board) proposal with respect to or (ii) public statement or otherwise seek to encourage, advise or assist any mergerperson in so encouraging or advising with respect to, business combinationin each case: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, consolidation(B) any change in the capitalization, saledividend or share repurchase policy of TPL Corp, tender offer(C) any other change in the Trust's or TPL Corp's business, exchange offeroperations, restructuringstrategy, reorganizationmanagement, dissolutiongovernance, liquidationcorporate structure, recapitalization or other transaction involving affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any Subsidiarysecurities exchange or (F) causing a class of equity securities of TPL Corp to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) seekinitiate, make, effect, seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist any (i) Extraordinary Transaction, (ii) material acquisition of any assets or businesses of the Trust, TPL Corp or any of either the Trust's or TPL Corp's subsidiaries, (iii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Trust or TPL Corp or any of their subsidiaries, (iv) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Trust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in concert with others, to control, change the Trust or influence the management, the Board TPL Corp that would reasonably be expected to require a public announcement or policies of the Company or disclosure regarding any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiarysuch matter;
(i) make enter into any publicly disclosed proposalnegotiations, public statement, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;
(j) publicly make or disclose in any way advance publicly any request or proposal to that the Trust or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(jk) announce an intention take any action challenging the validity or enforceability of this Section 3 or this Agreement, unless TPL Corp is challenging the validity or enforceability of this Agreement; provided, however, that (i) nothing in this Agreement shall prevent the Stockholders or Stockholder Designees from making (A) any factual statement in response to doa Legal Requirement, (B) any communication to the Trust or TPL Corp, or (C) any private communication to enter into any arrangement investors or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do prospective investors in any of the actions restricted Stockholders or prohibited under clauses any of their Affiliates, provided that, in each case, such statement or communication (1) is based on publicly available information; (2) is not reasonably expected to be required to be publicly disclosed by any person and is understood by all parties to be confidential communication; and (3) is not made with an intent to circumvent any of the restrictions listed in paragraphs (a) through (jk) of this StandstillSection 3 or Section 4; and (ii) the restrictions in this Section 3 shall not restrict the Stockholders or Stockholder Designees from tendering shares, receiving payment for shares or take otherwise participating in any action that might result in such transaction on the Company having to make a public announcement regarding any same basis as the other stockholders of the matters referred Trust or TPL Corp or from participating in any such transaction that has been approved by the Trustees or the Board, as applicable, subject to in clauses (a) through (j) the other terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, Agreement. Nothing in this Agreement shall limit the exercise in good faith by any action inconsistent with the foregoing.Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 1 contract
Sources: Stockholders' Agreement (Horizon Kinetics Asset Management LLC)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination this Agreement until the Expiration Date or until such earlier time as the restrictions in this paragraph 11 terminate pursuant to the terms of employment for any reasonthis Agreement (such period, neither Executive nor any of his affiliates or persons or entities the “Restricted Period”), Investor shall not, and shall cause its Affiliates and Associates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization on behalf of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of defined under the Securities Exchange Act of 1934, as amended and Exchange Commission the rules promulgated pursuant to Section 14 of thereunder (the “Exchange Act”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 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 Schedule 14A promulgated under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate ) in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents consents;
b) knowingly encourage, advise or matters presented knowingly influence any Third Party or knowingly assist any Third Party in so knowingly encouraging, advising or knowingly influencing any Third Party with respect to the Companygiving or withholding of any proxy, consent or other authority to vote (other than such encouragement, advice or influence that is consistent with the Board’s or its Subsidiaries’ stockholdersrecommendation in connection with such matter);
(dc) form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act and the rules promulgated thereunder, with any entity or person unaffiliated with Investor and with respect to any voting securities of the Company or the SubsidiariesVoting Securities;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, make or in any way participate, directly or indirectly, in any financing 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, merger, consolidation, acquisition, business combination, sale of a division, sale of substantially all assets, recapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization dissolution or other extraordinary transaction involving the Company or any Subsidiaryof its subsidiaries or its or their securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict Investor or any of its Affiliates or Associates from tendering (or failing to tender) shares, receiving payment or other consideration for shares, voting its shares “for” or “against” any Extraordinary Transaction, or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(hi) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate to, to the Board (except as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board, or propose (iii) request that, or knowingly encourage any Person to request that, the Company call any meeting of the Company’s stockholders, (iv) present any matter at any meeting of the Company’s stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a referendum of the Company’s stockholders; provided, however, that nothing in this Agreement shall prevent Investor or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”) so long as such actions do not create a public disclosure obligation for Investor or the Company and are undertaken on a basis reasonably designed to be voted confidential and in accordance in all material respects with Investor’s normal practices in similar circumstances;
f) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
g) make any request for stock list materials or other books and records of the Company under the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
h) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Charter or Bylaws;
i) enter into any negotiations, agreements or understandings with any Third Party to take any action that Investor is prohibited from taking pursuant to this paragraph 11; j) 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 inconsistent with the provisions of this paragraph 11; or
k) make any public request or submit any public proposal, directly or indirectly, to amend or waive the terms of this Agreement, in each case which would reasonably be expected to require a public announcement of such request or proposal; provided, that the restrictions in this paragraph 11 shall terminate automatically upon the earliest of (i) the Expiration Date, (ii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, (iii) the commencement of any tender or exchange offer (by a person other than Investor or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer, or (iv) as a non-exclusive remedy for any material breach of this Agreement by the Company (including, without limitation, a failure to appoint any New Director and otherwise constitute the Board in accordance with paragraph 1 or a failure to form the Strategic Asset Review Committee and otherwise constitute such committee in accordance with paragraph 2 and adopt the Strategic Asset Review Committee Charter, a failure to appoint a replacement in accordance with paragraph 5, or a failure to issue the Company Press Release in accordance with paragraph 10), upon ten (10) business days’ prior written notice by Investor following any such material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that Investor is not in material breach of this Agreement at the time such notice is given. During the Restricted Period, the Company shall not adopt and shall not propose the adoption of any amendment to the Company’s Charter or Bylaws that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future annual meeting of stockholders of the Company, and nothing contained in this paragraph 11 shall prevent Investor from (i) privately communicating with the Company or the Board, and (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party. Nothing in this Agreement shall prevent (a) the Company from responding to such Investor statements described in clause (ii) of the preceding sentence, subject to the obligations of the Parties under paragraph 12, or (b) the Company or Investor from making any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by Investor or any of its Affiliates or by the Company or any of its Affiliates, as applicable). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 11 shall prohibit or restrict a New Director from exercising his or her rights and fiduciary duties as a director of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry restrict his or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision her discussions solely among other members of the Standstill; or
(j) announce an intention to doBoard and/or management, advisors, representatives or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any agents of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Standstill. Executive agrees The PL Capital Parties each agree that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period (as hereinafter defined), neither Executive nor any of his the PL Capital Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of Alliance Bancorp:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an “Acquisition”), any voting securities of Alliance Bancorp, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition PL Capital Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyAlliance Bancorp common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryAlliance Bancorp;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of 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 Company or voting thereof, except as expressly set forth in this Agreement (for the Subsidiariesbenefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the PL Capital Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement);
(eiv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary Alliance Bancorp or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryAlliance Bancorp;
(fv) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryAlliance Bancorp;
(gvi) otherwise act, alone or in concert with others, propose or to seek to propose offer to the Company or any Subsidiary Alliance Bancorp or any of their respective stockholders or make its shareholders any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with Alliance Bancorp or the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of 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 representation on, or the Nominating and Governance Committee of the Alliance Bancorp Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders shareholders of the Company or any SubsidiaryAlliance Bancorp;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of 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 more of the outstanding shares of Alliance Bancorp common stock;
(viii) except in connection with the enforcement of this Agreement, planinitiate or participate, by encouragement or otherwise, in any litigation against Alliance Bancorp or the Bank or their respective directors or officers, or arrangement (whether written or oral) inconsistent with the foregoingin any derivative litigation on behalf of Alliance Bancorp, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillexcept for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillParagraph 2, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any 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 (2) with respect to any other proposal submitted by any Alliance Bancorp shareholder to a vote of the 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 contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by M▇. ▇▇▇▇▇▇ or the Substitute in his capacity as a member of Alliance Bancorp’s Board of Directors or the Bank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement directly with the President and Chief Executive Officer of Alliance Bancorp, or otherwise intentionally takeupon invitation, with other members of management or solicit, or cause or encourage others to take, any action inconsistent with the foregoingboard of directors of Alliance Bancorp.
Appears in 1 contract
Sources: Standstill Agreement (Alliance Bancorp, Inc. Of Pennsylvania)
Standstill. Executive Each Investor agrees that that, for the period commencing immediately following the payment of the Expense Reimbursement Amount pursuant to Section 3 (the “Releases Effectiveness Time”) and ending on the earliest of (i) the one year anniversary of the Agreement, or (ii) a period material breach by the Company of 18 months its obligations under this Agreement which is not cured within five (5) Business Days after written notice from any Investor (the date of Executive’s termination of employment for any reason“Standstill Period”), neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its controlled Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits controlled Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, :
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by purchase, tender offer, exchange offer, through the acquisition SEC under the Exchange Act or control otherwise) or any notice of another person nomination or entityother business for consideration, or otherwise, nominate any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options candidate for election to acquire, or securities convertible into or exchangeable for, any voting securities the Board (including by way of the Company or any SubsidiaryRule 14a-11 of Regulation 14A), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyas expressly permitted by this Agreement;
(bii) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a- 1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation”(as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s stockholders, or its Subsidiaries’ stockholders or others in connection with the solicitation make a request for a list of proxies or consents or matters presented to the Company’s stockholders or its Subsidiaries’ stockholdersto inspect any books and records of the Company;
(div) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) seek to place a Representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the SubsidiariesCompany;
(eviii) other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or negotiate with or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, beneficial ownership of (iA) any interests in the Company’s indebtedness or (B) an aggregate amount of more than 9.99% of the assetsCompany’s outstanding Common Stock (which shall not include Common Stock issued in connection with a stock split, tangible and intangible, of stock dividend or similar corporate action initiated by the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergersecurities beneficially owned by any of the Investors or their Affiliates); provided, business combinationhowever, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or nothing herein shall prevent any SubsidiaryInvestor from confidentially seeking a waiver from this provision;
(hx) seek, alone or in concert with others, to control, change or influence short sell the management, the Board or policies of the Company or any SubsidiaryCompany’s capital stock, or otherwise seekpledge, alone hypothecate or put any liens against the Company’s capital stock, except that an Investor may partake in concert customary margin transactions with others, election or appointment to or representation ona broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to nominate become public, any intention, plan or propose arrangement inconsistent with the nomination foregoing;
(xii) take any action challenging the validity or enforceability of any candidate toprovisions of this Section 4; or
(xiii) enter into any agreement, the Board arrangement or the removal of understanding concerning any member of the Boardforegoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, each of the Investors shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its sole discretion, and (ii) disclose, publicly or propose otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted upon on by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or and the reasons therefor. This Section 4 shall not restrict the ability of the Investors and each of their Affiliates and other Representatives to privately communicate with the Company and its Representatives so long as such private communications would not be reasonably expected to trigger public disclosure of obligations for any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingparty.
Appears in 1 contract
Standstill. Executive (a) Engine Group agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;:
(bi) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-l of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in Instruction 3 of Schedule 14A of Regulation 14A under the proxy rules Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in opposition to the recommendation or proposal of the Securities and Exchange Commission promulgated pursuant Board, or recommend or request or induce or attempt to Section 14 of the Exchange Act) of proxies or consents induce any other person to vote, whether subject to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of shareholders) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dii) form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities the Common Stock (other than a “group” that includes all or some of the Company persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the Subsidiariesdate hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Engine Group to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement through the execution of a joinder to this Agreement;
(eiii) acquiredeposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, offer to acquire other than any such voting trust, arrangement or agree to acquire, directly or indirectly, alone or agreement solely among the members of Engine Group and otherwise in concert accordance with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiarythis Agreement;
(fiv) arrangeseek, or encourage any person, to submit nominations in any way participate, directly or indirectly, in any financing furtherance of a “contested solicitation” for the purchase election or removal of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert directors with others, to seek to propose respect to the Company or seek, encourage or take any Subsidiary other action with respect to the election or removal of any of their respective stockholders or directors;
(A) make any public statement proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, business combinationacquisition, consolidation, sale, tender offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization disposition or other transaction business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or any Subsidiarydisposition activity approved by the Board;
(hvi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any Director or Directors for election to controlthe Board, change other than those nominated or influence supported by the managementBoard;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or Director on the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders (other than such encouragement, support or influence that is consistent with the Company’s management or the Board’s recommendation in connection with such matter);
(x) seek to call, or to request the call of, a special meeting of the Company’s shareholders, or make a request for a list of the Company’s shareholders or for any books and records of the Company;
(xi) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (any of the transactions or events described in this subsection (xi), a “Sale Transaction”);
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any matter to be voted upon Common Stock of the Company representing in the aggregate (among Engine Group and its Affiliates and Associates) in excess of 9.9% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the stockholders Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by Engine Group on the date of this Agreement);
(xiii) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any Subsidiaryright decoupled from such underlying security held by Engine Group to any Third Party that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case either (A) in a transaction approved by the Board or (B) to a Third Party who is entitled, and following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) of the General Rules and Regulations under the Exchange Act;
(xiv) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(xv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 6(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any Sale Transaction that has been approved by a majority of the Board and has been announced by the Company, Engine Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies in connection with such Sale Transaction.
(b) As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of terms “Affiliate” and “Associate” shall have the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of respective meanings set forth in Rule 12b-2 promulgated by the actions restricted or prohibited SEC under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Exchange Act;
Appears in 1 contract
Sources: Shareholder Agreement (Lojack Corp)
Standstill. Executive agrees that for a period of 18 months (a) Except as otherwise set forth in or permitted by this Agreement, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period (as defined below), neither Executive nor each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of his affiliates the foregoing, agents and other representatives (collectively, the “Related Persons” and each a “Related Person”) not to, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board:
(i) engage in any solicitation of proxies or written consents to vote (or withhold the vote of) any voting securities of the Company, or conduct any binding or nonbinding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any manner solicitation of proxies (the obligations pursuant or written consents) with respect to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireof the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities convertible into of the Company;
(ii) grant any proxy, consent or exchangeable for, other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of shareholders) or deposit any voting securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any Subsidiary, other than course of conduct with the acquisition in the aggregate purpose of less than one-half of one percent causing shareholders of the outstanding voting securities Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote at any meeting of the Company’s shareholders or by written consent;
(biv) makecall or seek to call, or in any way participate in, directly or indirectlyrequest the call of, alone or in concert with others, any meeting of shareholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Articles of Restatement of the Company, as amended (the “Articles”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as such term is used broker or agent for compensation submit a proposal or offer for, or make any communication in the proxy rules opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Securities and Exchange Commission promulgated pursuant Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Section 14 the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of proxies the Company such that after giving effect to any such Acquisition, the Investor Group or consents any of its Related Persons holds, directly or indirectly, in excess of a 2.0% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to voteacquire, whether subject any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to an Extraordinary Transaction (as defined in Section 6).
(viii) engage in any short sale, forward contract or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad- based market basket or index) that includes, relates to or exempt derives any significant part of its value from a decline in the proxy rules, market price or value of the securities of the Company;
(ix) seek to advise, encourage encourage, support or influence in any manner whatsoever any person or entity with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any voting securities of the Company or its subsidiaries;
(x) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any Subsidiary;rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), (A) is an Activist Shareholder or (B) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with no known history of activism or known plans to engage in activism;
(cxi) initiatetake any action in support of or make any proposal or request that constitutes (or would constitute if taken), propose or “solicit” make any statement or have a discussion with any known shareholder of the Company concerning or with the effect of: (as such A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term is used of directors or to fill any vacancies on the Board, (B) any change in the proxy rules of the Securities capitalization, stock repurchase programs and Exchange Commission) stockholders practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any Subsidiary other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Articles or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the approval of stockholder proposals whether made Exchange Act;
(xii) pursuant to Rule 14a-8 or Rule 14a-4 14a-1(l)(2)(iv) under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with shareholders of the Company’s Company or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersothers;
(dxiii) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise) with respect to the Company or its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company’s list of shareholders or its other books and records or make any voting securities request under Sections 2-512 and 2-513 of the MGCL or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) of the Company or the Subsidiaries;any of its subsidiaries;
(exv) acquirecommence, offer to acquire encourage, join as a party, solicit or agree to acquiresupport any litigation, arbitration, derivative action in the name of the Company or any class action or other proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, alone to amend, modify or waive the terms of this Section 5 other than through non-public communications with the Company, which the Company may accept or reject in concert with othersits sole and absolute discretion, by purchase, exchange or otherwise, (i) that would not trigger public disclosure obligations for any member of the assets, tangible and intangible, of Investor Group or its Related Persons or reasonably be expected to trigger public disclosure obligations for the Company or any Subsidiary Company Related Persons; or
(xvii) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to any action the Investor Group is prohibited from taking pursuant to this Section 5, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Section 5 or elsewhere in this Agreement shall prohibit or restrict the Investor Group or its Related Persons from (iiA) direct communicating privately with members of the Board or indirect rights, warrants or options to acquire any assets executive officers of the Company regarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications; or (B) privately communicating to any Subsidiary;
of the Investor Group’s current investors publicly available factual information regarding the Company (f) arrangeit being understood by the Investor Group and its current investors that such communications are to be confidential communications). The Investor Group shall not, or in any way participateand shall cause its Related Persons not to, seek to do, directly or indirectly, in through any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Subsidiary;Related Person.
(gb) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision For purposes of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement:
Appears in 1 contract
Sources: Cooperation Agreement (Independence Realty Trust, Inc.)
Standstill. Executive agrees that for a period Except as otherwise provided in this Agreement or the Certificate of 18 months from Designations, until the date on which the Series A Director no longer serves on the Board of Executive’s termination Directors, without the prior written consent or invitation of employment for the Board of Directors, the Purchaser will not at any reasontime, neither Executive nor will it cause any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
its Affiliates to: (a) acquireeffect 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 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, (whether publicly or otherwise) to effect or participate in, (i) any direct acquisition of any equity securities (or indirect beneficial interest in any voting securities ownership thereof) or direct or indirect rights, warrants rights or options to acquireacquire any equity securities (or beneficial ownership thereof), or any securities convertible into or exchangeable forfor any such equity securities (or beneficial ownership thereof) of the Company, other than by Purchaser and its Affiliates in a transaction pursuant to which Purchaser and its Affiliates would beneficially own no more than five percent (5%) in the aggregate of the outstanding shares of the Company’s Common Stock (excluding any voting securities 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 Company or its Subsidiaries or purchase of assets of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent its Subsidiaries constituting a significant portion of the outstanding voting securities consolidated assets of the Company;
Company and its Subsidiaries; (b) make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
other matter or proposal; (c) initiate, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
consents; (d) formseek to advise, join encourage or influence any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act Person with respect to the voting or disposition of any voting of the securities of the Company Company; or the Subsidiaries;
(e) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities “vote no,” “withhold” or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
similar campaign; (gf) otherwise act, alone or in concert with others, act to seek representation on or to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the Board management or policies of the Company or to obtain representation on the Board of Directors of the Company (beyond their right to do so based on their representation on the Board of Directors pursuant to Section 4.1); (g) publicly submit any Subsidiaryshareholder 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 “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party (excluding, for the avoidance of doubt, the Purchaser Parties) with respect to the voting of any securities of the Company; it being understood that nothing in this Section 4.4 shall (v) restrict or prohibit a Series A Director or Purchaser Nominee, as applicable, from taking any action, or otherwise seekrefraining from taking any action, alone which he or she determines, in concert with othershis or her reasonable discretion, election is necessary or appointment to appropriate in light of his or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any her fiduciary duties as a member of the BoardBoard of Directors, (w) restrict or propose prohibit the making or submission to the Company and/or the Board of Directors any matter to be voted upon proposal by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal Purchaser Parties that would not reasonably be expected to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having being obligated to make a public announcement regarding any publicly disclose such proposal, (x) restrict or prohibit participation in rights offerings made by the Company to all holders of Common Stock, (y) restrict or prohibit the Purchaser’s acquisition, disposition, sale or Transfer of the matters referred to Purchased Shares (including the accretion of dividends thereon and any dividends payable in clauses (a) through (j) any other security), in each case, in accordance with the terms of this StandstillAgreement and, with respect to the Series A Preferred Stock, the Certificate of Designations or otherwise intentionally take, (z) limit or solicit, restrict any Transfer pursuant to a Permitted Loan or cause any foreclosure thereunder or encourage others to take, any action inconsistent with the foregoingTransfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (Array Technologies, Inc.)
Standstill. Executive In consideration of the Evaluation Material being furnished to INTERESTED PARTY, INTERESTED PARTY hereby agrees that that, without the prior written consent of ORCHID, for a period of 18 months one year from the date of Executive’s termination of employment for any reasonhereof, neither Executive INTERESTED PARTY nor any of his affiliates its affiliates, either acting alone or persons as part of a group, will acquire or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, ownership (including beneficial ownership), or any direct rights or indirect options to acquire ownership (including beneficial interest in ownership), of any voting securities or direct assets of ORCHID or indirect rightsits subsidiaries, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, make or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) solicitation of proxies or consents to vote, whether subject to or exempt from the proxy rules, vote or seek to advise, encourage advise or influence in any manner whatsoever matter any person or entity with respect to the voting of any securities of ORCHID or otherwise seek to influence or control, in any manner whatsoever, or enter into any arrangements with any third party with respect to any proposal to seek to influence or control, the management or policies of ORCHID, or make any public disclosure or take any other action that would require ORCHID to make a public disclosure with respect to any of the foregoing matters, except pursuant to a Transaction that is subject to a Definitive Agreement (the foregoing being collectively referred to as the “Standstill Restrictions”). The Standstill Restrictions shall terminate immediately upon the occurrence of any of the following: (i) any third party publicly commences (or publicly announces its intention to commence) any attempt to acquire beneficial ownership of 50% or more of the outstanding shares of voting securities of ORCHID or (ii) ORCHID executes a definitive agreement that, if consummated, would result in (A) the sale of all or substantially all of the assets of ORCHID, (B) the acquisition by a third party of 50% or more of ORCHID’s outstanding voting securities or (C) the consummation of a merger, acquisition, consolidation, reorganization, share exchange, business combination, similar transactions, or series of such related transactions involving ORCHID, unless immediately after such transaction or transactions, the voting securities of ORCHID outstanding immediately prior to the first such transaction (or, the voting securities issued in respect thereof) shall represent at least 50% of the voting securities of the Company surviving company. In addition, nothing herein, including, without limitation, the Standstill Restrictions, shall prevent INTERESTED PARTY or any Subsidiary;
(c) initiateof its affiliates from acquiring securities of another company that beneficially owns any securities of or equity interests in ORCHID, propose or “solicit” (as unless such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary acquisition was made for the approval purpose of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under violating the Exchange ActStandstill Restrictions. Further, 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 notwithstanding anything to the Company’s or its Subsidiaries’ stockholders;
(d) formcontrary contained herein, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect Standstill Restrictions shall not apply to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any investment in any securities of ORCHID by or on behalf of any pension or employee benefit plan or trust, including without limitation (A) any direct or indirect interests in portfolio securities held by an investment company registered under the assetsInvestment Company Act of 1940, tangible and intangibleas amended, (B) interests in securities comprising part of the Company a mutual fund or broad based, publicly traded market basket or index of stocks approved for such a plan or trust in which such plan or trust invests, or (C) any stock portfolios not controlled by INTERESTED PARTY or any Subsidiary of its affiliates which invest in ORCHID among other companies; or (ii) direct or indirect rights, warrants or options to acquire any assets or securities of ORCHID, as debtor, that are acquired in a transaction subject to the approval of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for United States Bankruptcy Court pursuant to proceedings under the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingUnited States Bankruptcy Code.
Appears in 1 contract
Sources: Confidentiality Agreement (Laboratory Corp of America Holdings)
Standstill. Executive agrees that for a period of 18 months from (a) From the date of Executive’s termination of employment for this Agreement and continuing until such time as the Holders do not own any reasonShares (the “Standstill Period”), neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited except as pre-approved in writing by the BoardBoard of Directors or as set forth in the Margin Loan Issuer Agreement, acting by resolution approved by a majority of all members of the Boardeach Holder and its respective Affiliates will not, in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquiremake, offer effect, initiate, cause or propose to acquireparticipate in (A) any acquisition of any assets, solicit an offer to sell equity securities or agree to acquiredebt securities of Marcus or its subsidiaries, directly or indirectlyincluding through the acquisition of Beneficial Ownership of Common Stock, alone or other than in concert connection with othersa Permitted Hedging Transaction, by purchase, (B) any tender offer, exchange offer, through the acquisition merger, business combination, recapitalization, restructuring, liquidation, dissolution or control of another person extraordinary transaction involving Marcus or entity, its subsidiaries or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(bC) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is those terms are used in the proxy rules of the Securities and Exchange Commission SEC promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryMarcus;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dii) form, join or any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act Act, and the rules promulgated thereunder) other than a group involving Holders and Parent, pooling agreement, syndicate or voting trust with respect to the Beneficial Ownership of any voting securities of Marcus, or otherwise act in concert with another shareholder of Marcus for the Company purpose of acquiring, holding, voting or the Subsidiariesdisposing of securities of Marcus;
(eiii) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose control the management, the Board of Directors or policies of Marcus or seek to the Company or any Subsidiary offer to Marcus or any of their respective stockholders its shareholders any business combination resulting in control or make a change in management of Marcus;
(iv) seek to remove or support anyone else in seeking to remove, without cause, any public statement member of the Board of Directors, or encourage any other Person to do so;
(v) seek to call, or to request the call of, or call a special meeting of the shareholders of Marcus;
(vi) acquire any securities of Marcus, directly or indirectly, that would result in the Holders and Parent holding more than the lesser of (A) 2,450,000 shares of Common Stock of Marcus, or (B) 9.9% of the number of issued and outstanding shares of stock of Marcus;
(vii) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, assist, induce or encourage any other Person to take, or enter into discussions with any third party with respect to the taking of, any mergeraction referred to in clauses “(i)”, business combination“(ii)”, consolidation“(iii)”, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization “(iv)” “(v)” or other transaction involving the Company or any Subsidiary“(iv)” of this Section 4.01(a);
(hviii) seekinitiate or propose any shareholder nomination or proposal (including through the use of any “proxy access” procedure) or induce or attempt to induce any other individual, firm, corporation, partnership, or other entity to initiate any shareholder nomination or proposal; or
(ix) other than in connection with enforcement of each Company’s rights under this Agreement, the Purchase Agreement and the other agreements contemplated thereby, otherwise act, alone or in concert with others, to controlencourage, change facilitate, incite, or influence the managementseek to cause others to instigate legal proceedings against Marcus, the Board or policies of the Company or any Subsidiaryof its subsidiaries or their respective officers, directors, or otherwise seekemployees.
(b) During the Standstill Period, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;Holders and Parent shall:
(i) vote (or cause to be voted) all Shares in favor of the director nominees nominated by the Board of Directors for election to the Board of Directors; and
(ii) vote all Shares in accordance with the recommendation of the Board of Directors on all other proposals not involving the election of directors of Marcus at any meeting of the shareholders of Marcus.
(c) During the Standstill Period, Holders and Parent shall not directly or indirectly make or issue or cause to be made or issued any publicly disclosed proposaldisclosure, public statementannouncement, public inquiry or public disclosure statement (including without limitation the filing of any intentiondocument or report with the SEC or any other governmental agency unless required by law or any disclosure to any journalist, planmember of the media, or arrangement securities analyst) concerning the other party or, with respect to Marcus, any of its past, present or future directors, director nominees, officers, members, employees, advisors or other affiliates, which disparages such other party or any of such other party’s respective past, present, or future directors, director nominees, officers, members, employees, advisors or other affiliates.
(d) During the Standstill Period, Holders and Parent, whether directly or indirectly through any third-party intermediaries (other than the lender or any transferee of the lender under the Margin Loan Issuer Agreement), shall not, publicly or privately, request that Marcus or the Board of Directors waive, terminate, or amend the provisions of this Section 4.01.
(e) All of the Shares are subject to this Section 4.01. Any transferee of any of the Shares shall acknowledge and agree to be bound by the terms of this Section 4.01, except where such transferee acquires ownership of the Shares through a public offering that is made in compliance with this Agreement pursuant to a Registration Statement.
(f) For the purposes of this Section 4.01, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to “Beneficially Own” any Common Stock:
(i) which such Person or any of such Person’s Affiliates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person’s Affiliates, directly or indirectly, has (A) the right or the obligation to acquire (whether such right is exercisable, or such obligation is required to be performed, immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (written or oral and other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; or (B) the right to vote pursuant to any agreement, arrangement or understanding (written or oral);
(iii) inconsistent which are beneficially owned, directly or indirectly, by any other Person with the foregoingwhich such Person or any of such Person’s Affiliates has any agreement, arrangement or make understanding (written or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement oral and other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the purpose of acquiring, holding, voting or disposing of any provision Common Stock of the StandstillMarcus; or
(jiv) announce an intention which are beneficially owned, directly or indirectly, by a counterparty (or any of such counterparty’s Affiliates) under any Derivatives Contract (without regard to do, any short or to enter into similar position under the same or any arrangement or understanding with others (whether written or oralother Derivatives Contract) to do, which such Person or to finance, intentionally advise, enable, assist or encourage others to do any of such Person’s Affiliates is a Receiving Party; provided, however, that the actions restricted or prohibited number of Common Stock that a Person is deemed to Beneficially Own pursuant to this clause (iv) in connection with a particular Derivatives Contract shall not exceed the number of Notional Common Stock with respect to such Derivatives Contract; provided, further, that the number of Common Stock beneficially owned by each counterparty (including its Affiliates) under clauses (a) through (j) a Derivatives Contract shall for purposes of this Standstillclause (iv) be deemed to include all Common Stock that are beneficially owned, directly or take indirectly, by any action that might result in the Company having to make a public announcement regarding other counterparty (or any of such other counterparty’s Affiliates) under any Derivatives Contract to which such first counterparty (or any of such first counterparty’s Affiliates) is a Receiving Party, with this proviso being applied to successive counterparties as appropriate.
(g) For the matters referred to in clauses (a) through (j) purposes of this StandstillSection 4.01 “Derivatives Contract” means a contract between two parties (the “Receiving Party” and the “Counterparty”) that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock specified or referenced in such contract (the number corresponding to such economic benefits and risks, the “Notional Common Stock”), regardless of whether obligations under such contract are required or otherwise intentionally takepermitted to be settled through the delivery of cash, Common Stock or solicitother property, without regard to any short position under the same or cause or encourage others to take, any action inconsistent with the foregoingother similar contract.
Appears in 1 contract
Sources: Shareholders Agreement (Marcus Corp)
Standstill. Executive agrees that for a period Prior to the Termination Date, except as otherwise provided in this Agreement, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting the EC Parties shall not, and shall cause their respective Affiliates not to, directly or indirectly (in each case, except as permitted by resolution approved this Agreement):
(a) (i) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (except by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardCompany generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company or beneficial ownership thereof or any voting rights decoupled from the underlying voting securities in excess of 4.99% of the Company’s then-outstanding Common Stock; or (ii) sell its shares of Common Stock other than in open market sale transactions or through a broker or dealer where the identity of the purchaser is not known, or in underwritten widely dispersed public offerings;
(b) (i) nominate, recommend for nomination, give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected (or in connection with any proposed stockholder action by written consent); (ii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting (or in connection with any action by written consent); (iii) knowingly initiate, encourage or participate in any manner (the obligations pursuant “withhold” or similar campaign with respect to this Section 13 being referred to as, the “Standstill”):any Stockholder Meeting;
(ac) acquireengage in any solicitation of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal involving the Company or become a participant in any such solicitation of proxies or consents;
(d) initiate or seek the convening of (or assist any other Person in the convening of) any Stockholder Meeting (or assist any other Person in seeking any such action);
(e) form, offer join or propose in any way knowingly participate in any group or agreement of any kind with respect to acquireany voting securities of the Company, solicit an offer including in connection with any election or removal contest with respect to sell the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with any other EC Party or one or more of its Affiliates and Associates that agree to acquirebe bound by the terms and conditions of this Agreement);
(f) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, directly arrangement or indirectlyagreement solely among the EC Parties and their Affiliates and otherwise in accordance with this Agreement);
(g) seek publicly, alone or in concert with others, by purchaseto amend any provision of the Company’s certificate of incorporation or bylaws;
(h) demand an inspection of the Company’s books and records;
(i) engage or continue to engage or use any private investigations firm or other person to investigate any of the Company’s directors, tender offerofficers or employees or any of the Company’s Representatives or use any report or findings of such firm or person;
(i) make any public or private proposal with respect to or (ii) make any public statement or otherwise seek to encourage or advise or assist any Person in so encouraging or advising with respect to: (A) any change in the identity, exchange offernumber or term of directors serving on the Board or the filling of any vacancies on the Board, through (B) any change in the acquisition capitalization or control dividend policy of another person the Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or entitypolicies, or otherwise(D) any Extraordinary Transaction, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiary, other than the acquisition in the aggregate securities exchange or (F) causing a class of less than one-half of one percent of the outstanding voting equity securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules Company to become eligible for termination of the Securities and Exchange Commission promulgated registration pursuant to Section 14 12(g)(4) of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(ck) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, make or in any way participate, directly or indirectly, in any financing Extraordinary Transaction (it being understood that the foregoing shall not restrict any EC Party from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets same basis as other stockholders of the Company or from participating in any Subsidiary;
(gsuch transaction that has been approved by the Board, subject to the other terms of this Agreement) otherwise actor make, directly or indirectly, any proposal, either alone or in concert with others, to seek to propose to the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any Subsidiary such matter;
(l) publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of their respective stockholders this Agreement;
(m) take any action challenging the validity or make enforceability of this Section 3 unless the Company is challenging the validity or enforceability of this Section 3; or
(n) enter into any public statement negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, facilitate encourage or seek to persuade any Third Party to take any action with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or otherwise take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with any of the foregoing.
Appears in 1 contract
Standstill. Executive Each member of the Shareholder Group agrees that for a period other than as may be required by applicable law, order or regulation, during the Standstill Period, he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for any reasonAffiliates or agents or other persons acting on his or its behalf not to, neither Executive nor any of and will use commercially reasonable efforts to cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own, or have the right to acquire beneficial ownership of, more than the acquisition in the aggregate of less than one-half of one percent 9.99% of the outstanding voting securities Common Stock (based on the latest annual or quarterly report of the CompanyCompany filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 3(d) hereof or acquired in the future (subject to the limitations set forth in Section 8(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the SubsidiariesCommon Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by purchasethis Agreement;
(f) effect or seek to effect (including, exchange without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 1 contract
Standstill. Executive Servier agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the BoardAffiliate, acting by resolution approved by a majority alone or as part of all members of the Boardany group, shall directly or indirectly, in any manner (for a period commencing on the obligations pursuant to this Section 13 being referred to asEffective Date and ending *** after the Effective Date, without the “Standstill”):prior written approval of MacroGenics’ Board of Directors:
(a) acquire15.1.1 acquire or agree, offer offer, seek or propose to acquire, solicit an offer or cause to sell be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d 3 under the Securities and Exchange Act of 1934) of any of the assets or agree to acquire, directly businesses of MacroGenics or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entityany securities of MacroGenics, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companysuch ownership (including from a third party);
(b) 15.1.2 make, or in any way participate in***, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicitproxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actvote, or otherwise, seek to advise or cause or encourage or attempt to cause or encourage others to initiate influence any such stockholder proposal; or otherwise communicate person with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented respect to the Company’s or its Subsidiaries’ stockholdersvoting of any voting securities of MacroGenics;
(d) 15.1.3 form, join or in any way participate in in, a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company or the SubsidiariesMacroGenics;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) 15.1.4 otherwise act, whether alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to MacroGenics any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving the Company to or any Subsidiary;
(h) seekwith MacroGenics or otherwise act, whether alone or in concert with others, to seek to control, change *** of MacroGenics who is not nominated by the then incumbent directors,
15.1.5 solicit, negotiate with, or influence the managementprovide any information to, the Board any person with respect to a merger, exchange offer or policies liquidation of MacroGenics or any other acquisition of MacroGenics, any acquisition or voting securities of or all or any portion of the Company assets of MacroGenics or any Subsidiaryother similar transaction;
15.1.6 announce an intention to, or otherwise seek, alone or in concert *** with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate third party with respect to, the Board or the removal of any member of the Board, or propose foregoing; or
15.1.7 disclose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) *** inconsistent with the foregoing, or make advise, assist or disclose encourage any other persons in connection with any of the foregoing. In addition, Servier hereby agrees that during the term of this Agreement, it shall not request MacroGenics, directly or proposal indirectly, to amend, amend or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
ARTICLE 15, (jincluding this sentence.) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing***.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from (a) From and after the date of Executive’s termination of employment for any reasonClosing Date, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willduring the Ownership Period, unless specifically invited in writing by Investor and its Covered Affiliates will not, and Investor will cause such Covered Affiliates not to, without the Board, acting by resolution approved by a majority of all members prior written consent of the Board, directly or indirectly, singly or in concert with any manner other Person:
(the obligations i) except (i) pursuant to this the exercise of preemptive rights in accordance with Section 13 being referred 7.5 and (ii) pursuant to asopen market purchases following which Investor Beneficially Owns up to (but no more than) 19.99% of Company’s outstanding Common Stock, the “Standstill”):
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, Beneficial Ownership of any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, options or other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting direct or indirect rights to acquire any securities of the Company, or any Derivative Instruments;
(bii) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the 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 (or execution of a proxy or written consent in respect of) any securities of the Company, or become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) with respect to 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 “solicitation” (as such term is used in the proxy rules meeting of the Securities and Exchange Commission promulgated pursuant to Section 14 Company’s stockholders, whether or not such a meeting is permitted by the Governing Documents of the Exchange ActCompany, including a “town hall meeting”;
(vi) of proxies disclose publicly or consents privately, in a manner that would reasonably be expected to votebecome public, whether subject to or exempt from the proxy rulesany intent, purpose, plan, or seek to advise, encourage or influence in any manner whatsoever any person or entity proposal with respect to the voting of any voting securities of Company, the Company Board, the Company’s management, business or corporate structure, policies, affairs, or any Subsidiaryof its securities or assets, including as related to the Project;
(cvii) initiateact, 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 Actseek, facilitate, persuade, 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 indirectlyencourage, alone or in concert with others, by purchaseany Person to submit nominations or proposals, exchange whether in furtherance of a “contested solicitation” or otherwise, (i) any for the appointment, election or removal of the assets, tangible and intangible, directors of the Company or otherwise with respect to the Company or seek, facilitate or encourage the appointment, election or removal of any Subsidiary directors of the Company;
(viii) submit, participate in, or be the proponent of, or seek, or persuade or encourage any Person, to submit, any stockholder proposal to the Company (iiincluding any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act);
(ix) direct or indirect rights, warrants or options to acquire deposit any assets securities of the Company in any voting trust or similar arrangement or subject any Subsidiarysecurities of the Company to any arrangement or agreement with respect to the voting thereof (including by granting any proxy, consent, or other authority to vote), other than any such trust, arrangement or agreement among the Company and its Affiliates;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gx) otherwise act, alone along or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the managementBoard, the Board management or policies of the Company or (it being understood that this clause (x) shall not prohibit any Subsidiary, or otherwise seek, alone or in concert private discussions 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 management of the Company or any Subsidiarythat are not otherwise expressly prohibited by this Section 7.2);
(ixi) make cause any publicly disclosed proposalPerson to take any action that Investor or Investor’s Covered Affiliates and their respective Representatives is prohibited from taking pursuant to this Section 7.2;
(xii) request, public statementdirectly or indirectly, public inquiry any amendment, modification or public disclosure 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 intentiondemand, plan, Proceeding (legal or arrangement (whether written or oralotherwise) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 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 seek permission Transfer (subject to Section 7.1) its Common Stock or make 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 7.2 will again be applicable as if the Ownership Period had never expired. Notwithstanding anything in this Section 7.2 to the contrary, the restrictions set forth in this Section 7.2 will automatically terminate on the earliest to occur of (x), the Board’s adoption of a written resolution approving a Change of Control transaction or (y) the public announcement by a Third Party (who is not the Investor or any of its Covered Affiliates) of any tender or exchange offer the consummation of which would result in such Third Party’s acquisition of Beneficial Ownership of more than fifty percent (50%) of the outstanding Voting Stock or equity securities of the Company or the voting power to elect a 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 any provision 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 Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) provisions of this StandstillAgreement 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 take similar committees of Investor Excluded Parties, and information shall not be deemed to have been received by any action that might result in such Investor Excluded Party solely due to such employee’s dual role (so long as such employee does not disclose such information to the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, Investor Excluded Party or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingits Representatives).
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Minerals International Inc)
Standstill. Executive agrees that for a period of 18 24 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 14 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Sources: Employment Agreement (Amedisys Inc)
Standstill. Executive (a) Purchaser agrees that that, for a period of 18 months two (2) years from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis Agreement, unless specifically invited in writing by the BoardParent, acting by resolution approved by a majority neither Purchaser nor any of all members of the Boardits Affiliates will, directly or indirectly: (i) effect or seek to effect, or announce any intention to effect or in any manner way encourage any other Person to effect or seek to effect or participate in, (the obligations pursuant A) any acquisition of any securities (or beneficial ownership thereof), or rights or options to this Section 13 being referred to asacquire any securities (or beneficial ownership thereof), the “Standstill”):
or any assets, indebtedness or businesses of Parent or any Subsidiary, (aB) acquire, offer any tender or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition merger or control of another person or entity, or otherwiseother business combination involving Parent, any direct Subsidiary or indirect beneficial interest in any voting securities assets of Parent or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities the Subsidiaries constituting a significant portion of the Company consolidated assets of Parent and the Subsidiaries, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Parent or any Subsidiary, other than the acquisition in the aggregate connection with Purchaser exercising any of less than one-half of one percent its rights under any of the outstanding voting securities of the Company;
(b) makeTransaction Documents, or in any way participate in, directly or indirectly, alone or in concert with others, (D) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant Commission) or consent to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of vote any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company Parent or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others (other than in connection with the a solicitation of proxies or consents or matters presented to the Company’s by Parent or its Subsidiaries’ stockholders;
Board of Directors); (dii) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of (as defined under the Exchange Act Act) with respect to any voting securities of the Company or the Subsidiaries;
Parent; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(giii) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the management or Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination Directors of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
Parent; (iiv) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having which would reasonably be expected to force Parent to make a public announcement regarding any of the types of matters set forth in (i) above; or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that nothing in this Section 4.3(a) will prohibit or otherwise restrict the Transactions, Purchaser’s satisfaction of contractual obligations to Royal Dutch Shell PLC or its subsidiaries existing as of the date hereof and as described in Section 5.1(C) of the Farmout Agreement, any sale of Common Stock by Purchaser or the passive ownership by Purchaser of not more than 19.9% of the outstanding Common Stock in the aggregate through one or more transactions. If at any time during such period, Purchaser or any of its Affiliates is approached by any third party concerning any transaction involving any assets, indebtedness or business of, or securities issued by, Parent or any Subsidiary, Purchaser will promptly inform Parent of the nature of such transaction and the parties involved.
(b) Notwithstanding anything to the contrary contained in this Section 4.3, if at any time Parent consents to the taking of any action referred to in clauses (ai)(B) through (ji)(D), (ii) or (iii) of Section 4.3(a) by one or more third parties, Parent shall be deemed to have provided identical consent to Purchaser and its Affiliates, and this StandstillSection 4.3 shall be of no force or effect with respect to such consented-to actions during the pendency of such actions.
(c) Notwithstanding anything to the contrary contained in this Section 4.3, if at any time a third party does any of the acts referred to in Section 4.3(a)(i)(B) or otherwise intentionally take(C) and Section 4.3(b) does not apply, none of Purchaser and its Affiliates will be prohibited from taking any actions set forth in Sections 4.3(a)(i)(B) or solicit(C) during the pendency of such acts, or cause or encourage others provided that Purchaser shall provide Parent with written notice of any such action, including a reasonably detailed description thereof, at least 72 hours prior to take, any action inconsistent with the foregoingtaking such action.
Appears in 1 contract
Sources: Securities Purchase Agreement (Far East Energy Corp)
Standstill. Executive agrees that for For a period of 18 months five (5) years from the date of Executive’s termination of employment for any reasonthis Agreement, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all but only during such periods as members of the BoardRestricted Group own in the aggregate five percent (5%) of the Voting Power of the Outstanding Voting Securities, no member of the Restricted Group will, and they will not assist or encourage others (including by providing financing) to, directly or indirectlyindirectly (i) acquire or agree, in any manner (the obligations pursuant to this Section 13 being referred to asoffer, the “Standstill”):
(a) acquire, offer seek or propose (whether publicly or otherwise) to acquireacquire ownership (including but not limited to beneficial ownership) of any substantial portion of the assets or Equity Securities of the Company, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchasemeans of a negotiated purchase of assets, tender offer, or exchange offer, through the acquisition merger or control of another person other business combination, recapitalization, restructuring or entityother extraordinary transaction (a "Business Combination"), or otherwise, any direct or indirect beneficial interest (ii) engage in any voting securities "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated under the Exchange Act, but disregarding clause (iv) of Rule 14a-1(1)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1) or direct or indirect rights, warrants or options to acquire(2)), or securities convertible into or exchangeable forform, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” a "group" (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of defined under the Exchange Act) ), other than a group consisting solely of proxies or consents to votemembers of the Restricted Group, 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 any Equity Securities; provided that the voting ▇▇▇▇▇ Family Stockholders will be free to (x) tender their shares of Company Common Stock in connection with a third party tender or exchange offer for the Company regardless of whether such tender offer is recommended by the Board of Directors, (y) participate in any other offer made generally to holders of any voting securities class of Equity Securities and (z) conduct a "solicitation" of "proxies" of other members of the Restricted Group. No member of the Restricted Group will request the Company or any Subsidiary;
of its Representatives to amend or waive any provision of this paragraph (cincluding this sentence) initiate, propose or “solicit” (as such term Section 5. Nothing contained in this Section 7 is used in intended to or shall limit the proxy rules rights of the ▇▇▇▇▇ Family Stockholders to purchase additional Equity Securities and Exchange Commissionas permitted by Section 6, to vote their Equity Securities as provided in Section 8(b) stockholders or to dispose of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant their Equity Securities 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 a person engaged 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 activities described 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, clause (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct above or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingotherwise.
Appears in 1 contract
Sources: Stockholders Agreement (Fuqua J Rex)