Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer): (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company; (ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates; (iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).
Appears in 9 contracts
Sources: Securities Purchase Agreement (Meta Financial Group Inc), Securities Purchase Agreement (Meta Financial Group Inc), Securities Purchase Agreement (Meta Financial Group Inc)
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer None of CSH or Affiliate of the Buyer to, in any manner, its Permitted Transferees or subsidiaries shall directly or indirectly (including by directing a) acting alone or causing any other Person that is not in concert with others, seek to effect a change in control of Parent or the Buyer business, operations or a director, officer or Affiliate policies of the Buyer):
Parent; (ib) effect or seek, offer initiate or propose (whether publicly any stockholder proposal or otherwise) to effectmake, or announce any intention to effect or cause or participate in or in any way assistway, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) directly or indirectly, any acquisition "solicitation" of "proxies" to vote or intentionally seek in an organized fashion to influence any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction person with respect to the Company or voting of, any Parent Voting Securities in a manner inconsistent with the position of the Subsidiaries board of directors of Parent or Company Controlled Affiliates or any division thereof, or (D) any “become "participant" in a "solicitation” of “proxies” " (as such terms are used defined in Regulation 14A under the proxy rules Exchange Act, as in effect on the date hereof) in opposition to the recommendation of the SEC) or consents to vote any voting securities majority of the Company;
directors of Parent with respect to any matter; (iic) formpropose or seek to effect a merger, consolidation, recapitalization, reorganization, sale, lease, exchange or other disposition of substantially all assets or other business combination involving, or a tender or exchange offer for securities of, Parent or any of its subsidiaries or any material portion of its or such subsidiary's business or assets, or any similar transaction that has not been approved by the Board of Directors of Parent; (d) join a partnership, limited partnership, syndicate or other group (other than a group consisting of CSH, its Permitted Transferees and any of their subsidiaries), or otherwise act in concert with any way participate in other person, for the purpose of acquiring, holding, voting or disposing of Parent Voting Securities, or, otherwise become a “group” ("person" within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect Exchange Act relating to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause clauses (ia), (b), (c) aboveor (d); or
or (ve) enter into request, or induce or encourage any discussions or arrangements with any third party with respect other person to any of the foregoing. The Buyer further agrees request, that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to Parent amend or waive any provision of the provisions of this Section 4(l) (including 4.6. The provisions of this sentence)Section 4.6 shall cease to apply at such time after the Merger as CSH and its affiliates collectively cease to beneficially own at least 25% of the Parent Common Stock acquired by CSH in the Merger.
Appears in 5 contracts
Sources: Consent and Voting Agreement (Global Crossing LTD), Consent and Voting Agreement (Ipc Information Systems Inc), Consent and Voting Agreement (Global Crossing Holdings LTD)
Standstill. The Buyer hereby agrees that, during 11.1 For a period of five (5) years after the period commencing on the Closing Date and ending on the second annual anniversary thereof date hereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will Manchester shall not, and will shall cause each of its Subsidiaries not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect directly or seekindirectly, acquire, seek to acquire or make an offer or propose (whether publicly or otherwise) to effectacquire, or announce any intention to effect or cause or participate in alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition number of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifEquity Securities such that, after giving effect to any such acquisitionTransaction, the Buyer and/or any Buyer Controlled Entity and/or Control Manchester Group Member, either individually or in the aggregate, (taken as a whole) would beneficially own own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than nine and ninety-nine one hundredths percent the lesser of (9.99%A) 17% of the shares of Common Stock then outstanding, issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any tender or exchange offermerger, merger consolidation, recapitalization, reorganization or other business combination involving the Company Arsenal or any of the its Subsidiaries or Company Controlled Affiliates to purchase, directly or any division indirectly, alone or line in concert with others, a material portion of the business or assets of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Subsidiaries Arsenal Board, initiate or Company Controlled Affiliates or propose any division thereofsecurity holder proposal, (iv) make, or (D) in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A under the proxy rules of Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the SEC) or consents Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting securities of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Company;
Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (iiv) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any way participate public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) 17% of the then issued and outstanding Arsenal Shares or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
11.2 If any member of the Manchester Group inadvertently acquires any Equity Securities in violation of this Agreement, such member of the Manchester Group shall, as soon as it becomes aware of such violation, (a) give immediate notice to Arsenal and (b) subject to Section 11.1(ix), immediately dispose of such Equity Securities to Persons who are not members of the Manchester Group or Affiliates of any member thereof; provided that if the applicable member of the Manchester Group fails to comply with this Section 11.2 within ten (10) business days after becoming aware of such violation, Arsenal may also pursue any other available remedy to which it may be entitled as a result of such violation.
11.3 In furtherance of the transactions contemplated hereby and by the Framework Agreement, Manchester covenants and agrees that neither Manchester nor any of its controlled Affiliates will:
(a) for a period of eighteen (18) months after the Coniston Closing, directly or indirectly (including by partnering with third parties) deploy, sell, license or market any electronic medical health record or physician practice management software, related applications or solutions (the Restricted Activities), in any country in the world where Arsenal is conducting Restricted Activities on the date hereof; provided, however, that the reference to “grouprelated applications or solutions” in the definition of Restricted Activities shall not preclude ▇▇▇▇ from conducting its business as conducted on the date of the Framework Agreement or reasonable extensions thereof in the healthcare information exchange market which, for the avoidance of doubt, will in no event include electronic medical health record or physician practice management software; or
(within b) for a period of eighteen (18) months after the meaning of Coniston Closing, utilize the name [Misys] or any trade name, trademark, brand name, domain name or logo containing or associated with the name [Misys] (collectively, the Manchester Marks) in connection with any healthcare information technology solutions, or grant to any third party the right or license to use the Manchester Marks in connection with any healthcare information technology solutions anywhere in the world.
11.4 Notwithstanding anything contained in Section 13(d)(311.3(b) of to the contrary, Misys Open Source Solutions, LLC (▇▇▇▇) shall be permitted to utilize the ▇▇▇▇ name or any trade name, trademark, brand name, domain name or logo relating to ▇▇▇) ▇ in connection with respect to the securities of the Company or healthcare information technology solutions other than in connection with any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Restricted Activities.
Appears in 3 contracts
Sources: Relationship Agreement (Allscripts-Misys Healthcare Solutions, Inc.), Relationship Agreement (Misys PLC), Framework Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
Standstill. The Buyer hereby agrees that, during (a) During the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), unless specifically invited including any increase in writing the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person ’s stockholders that is not the Buyer instituted or a director, officer proposed by any Investor Stockholder or any Affiliate of the Buyer):any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iiii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effecteffect any Change in Control of the Company;
(vi) effect or seek, offer or announce any intention propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or cause other transaction with respect to the Company or participate in any of its Subsidiaries;
(vii) authorize or in take any way assist, facilitate action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or encourage ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition control of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors Board or the policies of the Company or to seek a waiver of any provision of this Agreement or the Subsidiaries voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Company Controlled AffiliatesInvestor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ivix) take any action which that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or would could reasonably be expected to force compel the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; orthis Section 4.2.
(vb) enter into If, at any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectlyindirectly propose, publicly request effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or its directorsin the case of a tender or exchange offer, officersis conditioned on the receipt of tenders from), employees the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or agents) to amend or waive any provision of this their affiliates (as defined in Section 4(l) (including this sentence12b-2 of the Exchange Act).
Appears in 3 contracts
Sources: Stockholders’ Agreement (Elevation Partners, L.P.), Stockholders' Agreement (Palm Inc), Securities Purchase Agreement (Elevation Partners, L.P.)
Standstill. The Buyer hereby agrees that(a) During the period commencing on the Closing and ending on the Standstill Termination Date (as defined below), provided that the Company is not in breach of its obligations under this Agreement (including Section 1 hereof), each of the Purchaser Parties (so long as such Purchaser Party is an Affiliate of the beneficial owner of the Company securities issued under the Purchase Agreement) shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(i) engage in any hostile or takeover activities with respect to the Company (including by means of a tender offer or soliciting proxies or written consents, other than as recommended by the Board);
(ii) acquire or propose to acquire beneficial ownership of additional Common Stock (other than the Common Stock issuable upon exercise of the Warrants) or other Company securities that in the aggregate, together with their beneficial ownership of any other Common Stock, is equal to beneficial ownership of twenty percent (20%) or more of the voting power of the outstanding Common Stock (taking into account the voting rights of the Common Stock underlying the Warrants and the Series F Preferred Stock); provided that the foregoing shall not prohibit or apply to the receipt of any (A) Common Stock paid as dividends on the Purchased Series E Preferred Stock held by the Purchaser or any of its Permitted Transferees or any Common Stock issued in exchange for the redemption of the Purchased Series E Preferred Stock held by the Purchaser or any of its Permitted Transferees in each case in accordance with the Series E Certificate of Designations and the Purchase Agreement or (B) or (C) any New Common Stock issued to the Purchaser or any of its Permitted Transferees pursuant to Section 4.07 of the Purchase Agreement, and such Series E Preferred Stock, Common Stock and New Common Stock shall not be taken into account for purposes of establishing compliance with the foregoing;
(iii) acquire or propose to acquire any other securities of the Company or any securities of any Affiliates of the Company;
(iv) call a special meeting of the Stockholders; or
(v) propose to remove, or vote to remove, any Directors of the Company (other than a Purchaser Designated Director in accordance with Section 1).
(b) Specifically, but without limiting Section 3(a), during the period commencing on the Closing Date and ending on the second annual anniversary thereof (Standstill Termination Date, without the “Standstill Period”), unless specifically invited in writing by prior written consent of the Company, each of the Buyer will Purchaser Parties shall not, and will shall cause its controlled Affiliates not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) effect propose to enter into, directly or seekindirectly, offer any merger, consolidation, recapitalization, business combination, partnership, joint venture, acquisition or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination similar transaction involving the Company or any of the Subsidiaries or Company Controlled its Affiliates or their properties, except as expressly permitted hereby
(ii) make or in any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) way participate in any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 of Regulation 14A under the proxy rules of the SECExchange Act) or written consents to vote vote, seek to influence, or advise others with respect to the voting of any voting securities of the CompanyCompany or any of its Affiliates (other than in a Purchaser Designated Director’s capacity as a member of the Board);
(iiiii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(313(d) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the any voting securities of the Company or any of the Subsidiaries or Company Controlled its Affiliates;
(iiiiv) otherwise act, alone or in concert with others, act to seek to control or influence the management, the board of directors Board or the policies of the Company Company, except through the Purchaser Designated Directors or as permitted by Section 3(c);
(v) propose to remove, or vote to remove, any Directors of the Subsidiaries Company (other than pursuant to the exercise of the Purchaser’s right to nominate Purchaser Designated Directors pursuant to Section 1);
(vi) publicly disclose any intent, plan or arrangement inconsistent with this Agreement; or
(vii) advise, assist or encourage others in connection with the above.
(c) Notwithstanding the foregoing provisions of this Section 3, the foregoing provisions shall not, and are not intended to:
(i) prohibit any Purchaser Party or its controlled Affiliates from privately communicating with, including making any offer or proposal to, the Board;
(ii) restrict in any manner how any Purchaser Party or its controlled Affiliates vote their Common Stock or other Company Controlled Affiliatessecurities, except as provided in Section 2;
(iii) restrict the manner in which any Purchaser Designated Director may (A) vote on any matter submitted to the Board or the Stockholders, (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;
(iv) take restrict any action which would Purchaser Party or would reasonably be expected to force the Company to make a public announcement regarding any of its Permitted Transferees from selling or transferring any of their Company securities to any other Purchaser Party or its Permitted Transferees or any successor of such Purchaser Party that, in any such case, agrees to be bound by the types of matters set forth provisions contained in clause (i) abovethis Agreement; or
(v) enter into restrict any discussions Purchaser Party or arrangements with any third party with respect to any of its Permitted Transferees from receiving (A) any Series E Preferred Stock or Common Stock paid as dividends on the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer Securities or Affiliate issued upon the redemption of the Buyer toPurchased Series E Preferred Stock, during in each case pursuant to the Standstill PeriodSeries E Certificate of Designations, directly the Purchase Agreement and the other agreements contemplated thereby or indirectly, publicly request (B) any New Common Stock in accordance with Section 4.07 of the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Purchase Agreement.
Appears in 3 contracts
Sources: Securities Purchase Agreement (LSB Industries Inc), Board Representation and Standstill Agreement (LSB Industries Inc), Board Representation and Standstill Agreement
Standstill. The Each Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the such Buyer will not, and will not permit any director, officer or Affiliate of the such Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the such Buyer or a director, officer or Affiliate of the such Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer Buyers and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled AffiliatesAffiliates (it being understood that this provision shall not prevent any coordinated activity between or among each of the Buyers hereof);
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Each Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the such Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l4(o) (including this sentence).
Appears in 3 contracts
Sources: Securities Purchase Agreement (Meta Financial Group Inc), Securities Purchase Agreement (Meta Financial Group Inc), Securities Purchase Agreement (Meta Financial Group Inc)
Standstill. The Buyer hereby agrees that(a) Until the date on which the Parent and the other Investors Beneficially Own Convertible Preferred Shares representing less than five percent (5%) of the total issued and outstanding Company Common Stock on an as-converted basis, during without the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by prior written consent of the Company, the Buyer will Parent shall not, and will not permit any director, officer or Affiliate shall cause each of the Buyer other Investors not to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) acquire, offer to acquire or agree to acquire Beneficial Ownership of Company Common Stock, except pursuant to stock splits, reverse stock splits, stock dividends or distributions, or combinations or any similar recapitalizations on or after the date hereof;
(ii) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate assist or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (Aa) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) assets of the Company or any of the Subsidiaries its Affiliates, including rights or Company Controlled Affiliates ifoptions to acquire such ownership; (b) initiate or propose any merger, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger business combination, restructuring, recapitalization or other business combination involving extraordinary transaction involving, or any change of control of, the Company or any of the Subsidiaries its Subsidiaries; or Company Controlled Affiliates or any division or line of business of any thereof, (Cc) any recapitalization, restructuring, liquidation, dissolution stockholder proposal or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofmake, or (D) in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote, or seek to influence any Person with respect to the voting of, Company Common Stock, or become a “participant” in a “solicitation” (as such terms are used defined in Regulation 14A under the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) 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 the securities of the Company or any of the Subsidiaries or Company Controlled AffiliatesCommon Stock;
(iii) otherwise actdeposit any Company Common Stock into a voting trust or subject Company Common Stock to any proxy, alone arrangement or in concert agreement with othersrespect to the voting of such securities or other agreement having a similar effect;
(iv) initiate or propose a call for any special meeting of the Company’s shareholders;
(v) seek or propose to influence, to seek to advise, change or control or influence the management, the board of directors of the Company, governing instruments or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliatesits Subsidiaries;
(ivvi) take participate in any action which would acquisition of assets or would reasonably be expected to force business of the Company to make a public announcement regarding any or its Subsidiaries or Affiliates outside of the types ordinary course of matters set forth in clause (i) abovebusiness; or
(vvii) propose, or agree to, or enter into any discussions discussions, negotiations or arrangements with with, or provide any confidential information to, any third party with respect to any of the foregoing. .
(b) The Buyer further agrees that it shall not, and prohibition in Section 2.2(a)(i) shall not permit any director, officer or Affiliate apply to ordinary course of business activities of the Buyer toParent, during each Investor or any of their respective Affiliates in connection with:
(i) proprietary and third party fund and asset management activities;
(ii) brokerage and securities trading activities;
(iii) financial services and insurance activities;
(iv) acquisitions made as a result of (A) a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change or (B) in connection with securing or collecting indebtedness previously contracted in good faith and not with the Standstill Periodintention of circumventing the prohibition in Section 2.2(a)(i); and
(v) acquisitions made in connection with a transaction in which the Parent, directly any of the Investors or indirectlyany of their respective Affiliates acquires a previously unaffiliated business entity that Beneficially Owns Company Common Stock, publicly request or any securities convertible into, or exercisable or exchangeable for, Company Common Stock, at the Company time of the consummation of such acquisition; provided that, in the case of each of (or its directors, officers, employees or agentsi) to amend or waive any provision through (v) of this Section 4(l) (including this sentence2.2(b), such ordinary course of business activities shall be made without the intent to influence the control of the Company.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Arch Capital Group Ltd.)
Standstill. The Buyer hereby (a) Takeda agrees that, during for a period of [***] ([***]) years from the period commencing on the Closing Effective Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by neither it nor any of its Affiliates will, without the Company, prior written consent of Orexigen or the Buyer will not, and will not permit any director, officer or Affiliate Orexigen Board of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):Directors:
(i) effect or seekacquire, offer to acquire, or propose (whether publicly agree to acquire, directly or indirectly, by purchase or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, : (A) any acquisition of any voting securities (or beneficial ownership thereof) direct or indirect rights or options to acquire any voting securities (or beneficial ownership thereof) of the Company Orexigen or any of the Subsidiaries or Company Controlled Affiliates subsidiary if, after giving effect to any the completion of such acquisition or proposed acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, Takeda would beneficially own more than nine and ninety-nine one hundredths [***] percent (9.99[***]%) of the outstanding shares of common stock of Orexigen (the “Common Stock then outstandingStock”), or (B) any tender or exchange offer, merger or other business combination involving the Company asset of Orexigen or any of the Subsidiaries subsidiary or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof;
(ii) make, or (D) in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) to vote, or consents seek to vote advise or influence any Person with respect to the voting of, any voting securities of the CompanyOrexigen;
(iiiii) submit or publicly announce a proposal for, or offer to enter into (with or without conditions) any merger, business combination or similar extraordinary transaction involving Orexigen or its securities or assets; *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
(iv) form, join or in any way participate in a any “group” (within the meaning of as defined in Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934, as amended) in connection with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveforegoing; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees request that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to Orexigen amend or waive any provision of this Section 4(l8.6.3.
(b) Notwithstanding the provisions of Section 8.6.3(a), Takeda’s obligations under this Section 8.6.3 shall automatically terminate upon the earliest to occur of:
(i) the acquisition by any Third Party of beneficial ownership of more than [***] percent ([***]%) of the outstanding Common Stock (other than by stockholders of Orexigen as of the Effective Date);
(ii) the commencement by any Person or Group of a tender offer or exchange offer to acquire securities of Orexigen;
(iii) Orexigen publicly announces its execution of any agreement related to a transaction described in (A) or (B) of this Section 8.6.3(b)(iii) or publicly announces its Board of Directors’ authorization or recommendation of such execution of any such agreement, or Orexigen publicly announces the consummation of any transaction involving (A) the sale of all or substantially all of the assets of Orexigen and its subsidiaries taken as a whole, or (B) a merger, business combination, restructuring, recapitalization or similar transaction of or with Orexigen and any of its subsidiaries taken as a whole;
(iv) Orexigen or any of its Affiliates becomes the subject of any bankruptcy, insolvency or similar proceeding (except for any involuntary proceeding that is dismissed within [***] ([***]) days); or
(v) The public announcement by Orexigen or any other Person of any of the foregoing.
(c) Notwithstanding the provisions of Section 8.6.3(a), it is understood and agreed that Takeda shall not be prohibited from entering into an agreement and having discussions with legal, accounting or financial advisors for the limited purposes of evaluating any of the transactions contemplated in this Section 8.6.3 and Takeda may initiate private discussions with, and submit proposals confidentially to, the Executive Officer of Orexigen regarding a transaction otherwise prohibited by this Section 8.6.3; provided that any such proposal shall be expressly conditioned on approval of Orexigen’s Board of Directors and shall by its terms not require public disclosure. Further, notwithstanding the provisions of Section 8.6.3(a), Orexigen agrees that during the Standstill Period, if the Orexigen Board of Directors has approved the commencement of the solicitation of bids for any transaction within the scope of Section 8.6.3(b)(iii), Orexigen will promptly notify Takeda of, and in good faith permit Takeda to participate in, such bidding process. *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
(d) The provisions of this Section 8.6.3 shall not apply to any investment by Takeda or an Affiliate of Takeda in Third-Party mutual funds or other similar passive investment vehicles that hold interests in securities of Orexigen or any of its Affiliates (and any such interests in securities shall not be taken into account for the purpose of Section 8.6.3(a) including the [***] percent ([***]%) exception contained therein), provided that the provisions of this sentence)Section 8.6.3(d) shall apply with respect to any such fund or vehicle only for so long as such fund or vehicle satisfies the requirements of paragraphs (i) and (ii) of Rule 13d-1(b)(1) promulgated under the Securities Exchange Act of 1934, as amended, with respect to any Orexigen securities held by such fund or vehicle.
(e) The termination or expiration of the Standstill Period will not terminate or otherwise affect any of the provisions of this Agreement other than this Section 8.6.3.
Appears in 3 contracts
Sources: Co Development, Co Promotion, Marketing and Licensing Agreement, Co Development, Co Promotion, Marketing and Licensing Agreement, Collaboration Agreement (Orexigen Therapeutics, Inc.)
Standstill. The Buyer (a) TPG hereby agrees thatthat until the earliest of (i) such time as TPG and its Affiliates no longer collectively own at least five percent (5%) of the outstanding Common Stock on an as-converted basis, during (ii) the period commencing on third (3rd) anniversary hereof, and (iii) a Change of Control is consummated, without the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by prior written approval of the Company, the Buyer will not, and will not permit neither TPG nor any director, officer or Affiliate of the Buyer to, in any mannerits Affiliates will, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(iA) effect or seekacquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in this Agreement, (B) upon conversion of the Preferred Stock, (C) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (D) directly from the Company or (E) to restore the aggregate percentage interest of TPG and its Affiliates in the Company’s outstanding Common Stock on an as-converted basis to no more than the level of such percentage interest as of the date hereof;
(B) enter into or agree, offer, propose or seek (whether publicly or otherwise) to effectenter into, or announce otherwise be involved in or part of, any intention agreement to effect provide equity financing in any acquisition transaction, merger or cause other business combination relating to all or participate in part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses;
(C) other than (a) a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Company Board of any of the TPG Nominated Directors permitted by the terms hereof to serve on such Company Board or (b) seeking the satisfaction of the Stockholder Approval, make, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting of, any Common Stock of the Company or any of its subsidiaries;
(AD) any acquisition other than in connection with seeking the satisfaction of any securities (the Stockholder Approval, call or beneficial ownership thereof) or rights or options seek to acquire any securities (or beneficial ownership thereof) call a meeting of the Common Stockholders of the Company or any of the Subsidiaries Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company;
(E) deposit any Securities of the Company Controlled Affiliates ifinto a voting trust, after giving effect or subject any Securities of the Company to any agreement or arrangement with respect to the voting of such acquisitionsecurities, or other agreement or arrangement having similar effect;
(F) seek representation on the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually Company Board or a change in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) composition or number of Company directors elected by the shares holders of Common Stock then outstandingor a change in the number of such directors who represent TPG, other than as expressly permitted pursuant to this Agreement; and
(G) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof), (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) of this Section 5.1(a) shall apply to the TPG Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken in good faith by TPG or any “solicitation” of “proxies” its Affiliates to prepare the TPG Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as TPG did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as such terms are used defined in the proxy rules Rule 14d-2 of the SECExchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or consents to vote any voting securities more of the outstanding shares of Voting Securities of the Company;
(ii) form, join or in on the filing of a preliminary proxy statement by any way participate in a “group” Person (within other than the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Company) with respect to the securities commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company; or
(iii) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(iv) on the occurrence of any material breach by the Company or any of the Subsidiaries or Company Controlled Affiliates;
its subsidiaries of any of its material obligations under this Agreement, which breach has not been remedied within ten (iii10) otherwise act, alone or in concert with others, days after notice to seek to control or influence the management, the board of directors or the policies of the Company thereof, or any of upon the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force failure by the Company to make a public announcement regarding any pay the Holders of the types Preferred Stock any dividends due thereon for three (3) successive fiscal quarters. Upon (w) any withdrawal or lapsing of matters set forth any such tender or exchange offer referred to in clause Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (i50%) above; orof the outstanding Voting Securities of the Company, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(ii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iii), or (z) the remedy of any breach described in Section 5.1(b)(iv) or the payment to the Holders in full in cash (by wire transfer of immediately available funds) all dividends then due and owing in respect of the Preferred Stock held by such Holders, as the case may be, the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
(vc) enter into TPG hereby agrees that during such time as the restrictions in Section 5.1(a) are effective, TPG will not transfer any discussions or arrangements with any third party with respect Securities to any Affiliate unless such Affiliate agrees in writing to be bound by all of the foregoing. The Buyer further agrees that it shall not, terms of Section 5.1 and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)5.
Appears in 2 contracts
Sources: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Standstill. The Buyer hereby agrees that, during From the period commencing on date hereof until the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)Date, unless specifically invited waived by SVAC in writing by the Companywriting, the Buyer will not, and will Investor shall not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or a director, officer or Affiliate consent of SVAC and the Buyer):
Company (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate assist or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or assets of SVAC or the Company or any of their respective affiliates, including rights or options to acquire such ownership or any other securities, rights or interests, including without limitation, options, swaps, derivatives or convertibles or other similar instruments, whether real or synthetic, that give Investor the right to vote or to direct the voting of any securities (of SVAC or beneficial ownership thereof) of the Company or otherwise convey the economic interest of beneficial ownership of any securities of SVAC or the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, Company; (B) any tender or exchange offer, merger or other business combination involving SVAC, the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, their respective affiliates; (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to SVAC, the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, their respective affiliates; or (D) any “solicitation” of “proxies” (as such terms are used defined in Rule 14a 1 of Regulation 14A under the proxy rules Exchange Act, disregarding clause (iv) of the SECRule 14a 1(l)(2) and including any otherwise exempt solicitation pursuant to Rule 14a 2(b)) or consents to vote any voting securities of SVAC, the Company;
Company or any of their respective affiliates; (ii) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act and the rules and regulations thereunder) with respect to the any voting securities of SVAC, the Company or any of the Subsidiaries their respective affiliates or Company Controlled Affiliates;
otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek to control control, advise, change or influence the management, the board of directors directors, governing instruments, shareholders, policies or the policies affairs of SVAC, the Company or any of the Subsidiaries or Company Controlled Affiliates;
their respective affiliates; (iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees ; or (v) make any public disclosure, or take any action that it shall notmight force SVAC, and shall not permit the Company, any directorof their respective affiliates or any other person to make any public disclosure, officer or Affiliate of with respect to the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of matters set forth in this Section 4(l) (including this sentence)Subscription Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Spring Valley Acquisition Corp.), Subscription Agreement (Spring Valley Acquisition Corp.)
Standstill. The Buyer hereby agrees that, during Until the period commencing on date is one year following the Closing Date earlier to occur of the time that (x) the Designated Stockholder irrevocably waives the rights set forth in Section 2.4 and ending on is no longer entitled to designate or nominate at least one (1) Investor Director pursuant to Section 2.1(a) or (y) the second annual anniversary thereof (Designated Stockholder is no longer entitled to the “Standstill Period”)rights set forth in Section 2.4, unless specifically invited in writing by the Company, the Buyer neither any Investor Stockholder, any current or former Elevation Entity, nor any Investor Stockholder’s (1) current or former members, officers, directors or partners or (2) current employees, agents, advisors or controlled Affiliates (collectively “Representatives”) will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the its Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingcontrolled Affiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or controlled Affiliates or assets of the Company or any its Subsidiaries or controlled Affiliates constituting a significant portion of the consolidated assets of the Company, its Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofcontrolled Affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division thereofcontrolled Affiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
Company or any of its controlled Affiliates (iiprovided that this clause (a) shall not affect or limit a Transfer made in accordance with Section 3.1(d)); (b) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or otherwise act in concert with any Person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors Board or the policies of the Company or any to obtain representation on the Board (provided that this clause (c) shall not affect or limit (x) an Investor Director’s actions in the exercise of such Investor Director’s fiduciary duties as a Director in and of itself or (y) the exercise in and of itself of the Subsidiaries Designated Stockholder’s or Company Controlled Affiliates;
Investor Stockholders’ rights or obligations set forth in this Agreement); (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further Each Investor Stockholder also agrees during such period not to request that it shall not, and shall not permit the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). To the extent that this Section 5.5 conflicts with the Confidentiality Agreement (as defined in the Purchase Agreement), this Section 5.5 shall govern, and the Confidentiality Agreement shall not apply.
Appears in 2 contracts
Sources: Stockholders Agreement (Homestore Inc), Stockholders Agreement (Homestore Inc)
Standstill. The Buyer hereby agrees that, during During the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Raging Capital Group, each Member, each Raging Capital Designee and each of their respective Affiliates shall not, without the prior written consent of the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer)::
(ia) effect or seekown, acquire, announce an intention to acquire, offer or propose (whether publicly to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) to effectBeneficial Ownership of any Common Stock (excluding (x) 18,888 shares of Common Stock Beneficially Owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as of the date of this Agreement, (y) 18,667 shares of Common Stock Beneficially Owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇ as of the date of this Agreement and (z) shares of Common Stock underlying New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement) or announce (ii) Beneficial Ownership of any intention to effect Senior Notes, Convertible Notes, New Convertible Notes or cause any other interests in the Company’s indebtedness, now in existence or participate which may be created in the future (excluding $27,500,000 principal amount of Senior Notes and $2,940,000 principal amount of New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement);
(b) make, or in any way assistparticipate, facilitate directly or encourage any other Person to effect or seekindirectly, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC) ), or consents seek to vote advise or influence any person with respect to the voting securities of, any Voting Stock of the Company;
(iic) form, join separately or in conjunction with any way participate 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, submit a recommendation of, suggestion to evaluate or pursue, or any proposal for, offer of, or comment on (with or without conditions) (including to the Board) any Extraordinary Transaction. “groupExtraordinary Transaction” (within the meaning of Section 13(d)(3) means any of the ▇▇▇▇ ▇▇▇) with respect to following involving the Company or any of its Subsidiaries or its or their securities or a material amount of the assets or businesses of the Company or any of the Subsidiaries its Subsidiaries: any tender offer or Company Controlled Affiliatesexchange offer, merger, acquisition, divestiture, business combination, reorganization, restructuring, recapitalization, sale or acquisition of material assets, change in publicly-traded status or exchange, liquidation or dissolution;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).
Appears in 2 contracts
Sources: Settlement Agreement (Raging Capital Management, LLC), Stock Purchase Agreement (Wb & Co)
Standstill. The Buyer As of the date hereof, Interested Party hereby represents and warrants to the Company that neither Interested Party nor any of its subsidiaries, nor any Person with whom Interested Party or any of Interested Party’s subsidiaries may be deemed to be acting in concert, owns any securities of the Company. Interested Party agrees that, during for a period of twelve (12) months from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this Agreement, unless specifically invited in writing by the board of directors of the Company, the Buyer neither Interested Party nor any of its subsidiaries, nor any Person with whom Interested Party or any of Interested Party’s subsidiaries may be deemed to be acting in concert, will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender or exchange offer, merger or other business combination involving the Company or or, any of the Subsidiaries subsidiaries or assets of the Company Controlled Affiliates or any division or line constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofits subsidiaries, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
; (iib) form, join or in any way participate in a “group” (within as defined under the meaning Securities Exchange Act of Section 13(d)(3) of 1934, as amended (the ▇▇▇▇ ▇▇▇“1934 Act”)) with respect to the securities of the Company or otherwise act in concert with any Person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors or the policies of the Company or any to obtain representation on the board of directors of the Subsidiaries or Company Controlled Affiliates;
Company; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further Interested Party also agrees during such period not to request (in any manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence); provided, that in the event that the Company or any of its subsidiaries issues any securities after the date hereof, the Company shall, as soon as reasonably practicable, provide Interested Party notice of such issuance so that Interested Party may seek to comply with the terms of this Section 14 that are applicable to such newly issued securities. The term “securities”, as used in this Agreement, shall include, without limitation, any securities of the Company and any derivative, swap or other transaction the purpose or effect of which is to give Interested Party or any of its subsidiaries, or any Person with whom Interested Party or any of its subsidiaries may be deemed to be acting in concert, economic risk similar to ownership of shares of any class or series of the Company, including due to the fact that the value of such derivative, swap or other transaction is determined by reference to the price, value or volatility of any shares of any class or series of the Company, or which derivative, swap or other transaction provides, directly or indirectly, the opportunity to profit from any increase in the price or value of shares of any class or series of the Company. The Parties acknowledge and agree that the foregoing shall not limit Interested Party in any way from acquiring or offering to acquire, directly or indirectly, any company or business unit thereof that, prior to entering into the definitive agreement with respect to such acquisition, beneficially owns securities of the Company so long as (A) such entity’s prior acquisition of such securities was not made directly or indirectly on Interested Party’s behalf or in connection with or anticipation of Interested Party’s acquisition of such company or business, and (B) such entity’s ownership was not a primary factor in the decision to consummate such transaction. The Company confirms that, at the time this Agreement is entered into, each Person that has executed a confidentiality agreement in relation to a Transaction has agreed, in such confidentiality agreement, to comply with obligations which are at least as onerous as those placed upon Interested Party by this Section 14.
Appears in 2 contracts
Sources: Confidentiality Agreement (PVKG Merger Sub, Inc.), Confidentiality Agreement (ConvergeOne Holdings, Inc.)
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇▇ ▇▇▇) with respect to agrees that she will not, will cause her spouse not to, and will urge the securities rest of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise acther immediate family not to, alone or in concert with others, to seek to control directly or influence indirectly, during the managementTerm, the board of directors or the policies of the Company or do any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth things listed in clause clauses (i) above; or
through (vvii) enter into any discussions or arrangements with any third party with respect below. Each ▇▇▇▇▇ Affiliate who has executed and delivered to any HUB a copy of the foregoing. The Buyer further this Agreement agrees that he, she or it shall will not, and shall will cause his or her spouse (if any) not permit any director, officer or Affiliate of the Buyer to, during and will urge the Standstill Periodrest of his or her immediate family (if any) not to, alone or in concert with others, directly or indirectly, publicly request during the Company Term, do any of the things listed in clauses (i) through (vii) below:
(i) beneficially own any voting securities of HUB,
(ii) propose to HUB or any other person any transaction between any person or entity with whom ▇▇▇▇▇ is affiliated, whether directly or indirectly, as shareholder, employee, director, officer, principal or agent, or in any other capacity, and HUB and/or its security holders or involving any of its securities or security holders.
(iii) assist, advise or encourage any other persons in acquiring, directly or indirectly, control of HUB or any of HUB's securities, businesses or assets,
(iv) solicit proxies or initiate, propose or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to any matter which has been recommended by the majority of members of the Board of Directors of HUB or in favor of any matter which has not been approved by a majority of the Directors of HUB,
(v) act to seek to affect or influence the control of the management or Board of Directors of HUB or its directorsbusiness operations or affairs, officersor make any public statements with respect thereto,
(vi) act for the purpose of acquiring, employees holding, voting or agentsdisposing of voting securities of the Company, or otherwise become a "person" or a member of a "group" within the meaning of Section 13(d) of the Securities Exchange Act of 1934, or
(vii) aid or abet or otherwise induce any person to amend or waive take any provision of the actions enumerated in (i) through (vi) of this Section 4(lArticle III. If a publicly held company with which ▇▇▇▇▇ is affiliated as a director but which she does not control takes any action set forth above, such action shall not be deemed a breach of this Article III if ▇▇▇▇▇ has neither suggested, initiated nor encouraged such action, nor participated in the company's consideration of such action. ▇▇▇▇▇ agrees that she will, will cause her spouse to, and will urge the rest of her immediate family to, vote all shares held of record as of the record date for HUB's 2000 Annual Meeting in accordance with the recommendations of HUB management. Each ▇▇▇▇▇ Affiliate who has executed and delivered to HUB a copy of this Agreement agrees that he, she or it will, will cause his or her spouse (if any) to, and will urge the rest of his or her immediate family (including this sentence)if any) to, vote all shares held of record as of the record date for HUB's 2000 Annual Meeting in accordance with the recommendations of HUB management.
Appears in 2 contracts
Sources: Resignation Agreement (Hudson United Bancorp), Resignation Agreement (Hudson United Bancorp)
Standstill. The Buyer hereby Walgreens agrees with the Company that, during from the period commencing on completion of the Closing Date Initial Public Offering (which is deemed completed upon pricing in the case of an IPO and ending on completion in the second annual anniversary thereof case of a Direct Listing or SPAC Transaction) and until three (3) years from such completion, Walgreens shall not, and shall cause its Affiliates not to, directly or indirectly, without the “Standstill Period”)prior written consent of the Walgreens Transaction Committee, unless specifically invited in writing by (i) acquire, agree to acquire, propose, seek or offer to acquire any Units or other equity interests of the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company VMD Corporation or any of the Subsidiaries their Subsidiaries, (ii) make any public announcement with respect to, or Company Controlled Affiliates ifoffer, after giving effect seek, propose, indicate an interest in (in each case with or without conditions) publicly or, if in a manner reasonably likely to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or result in the aggregateCompany being legally required to make a public announcement with respect thereto, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingprivately or enter into, (B) any merger, consolidation, business combination, tender or exchange offer, merger recapitalization, reorganization or other business combination involving purchase of a material portion of the Company assets, properties or securities of the Company, the VMD Corporation or any of their subsidiaries, or any other extraordinary transaction involving the Company, the VMD Corporation or any of their Subsidiaries or any of their respective securities, or (iii) knowingly assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection with the foregoing, in each case of the foregoing clauses (i) through (iii) unless (A) Walgreens or its Affiliates is acquiring one hundred percent (100%) of the Units or other equity interests not owned by Walgreens with the consent of the Walgreens Transaction Committee, (B) with respect to a Sale of the Company Controlled (including with respect to the VMD Corporation as if it were the Company, mutatis mutandis) to an acquirer other than Walgreens or its Affiliates or any division or line with the consent of business of any thereofthe Walgreens Transaction Committee, (C) in connection with an issuance of equity or securities convertible or exchangeable into equity by the Company (including any recapitalizationcapital raising transaction, restructuringmerger, liquidationconsolidation, dissolution business combination or acquisition or other extraordinary transaction with respect event in which any Units or other equity interests are issued), Walgreens or its Affiliates is acquiring Units or other equity interests pursuant to Section 3.3, Section 3.4 or Section 3.5, (D) Walgreens or its Affiliates is acquiring, agreeing to acquire, proposing, seeking or offering to acquire any Units or other equity interests of the Company or any the VMD Corporation in order to maintain a Majority Stake, (E) at the request of the Subsidiaries or Company Controlled Affiliates or any division thereof, Board pursuant to a Special Board Approval or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇F) with respect to the securities Transfers of the Company Units or any of the Subsidiaries or Company Controlled other equity interests from Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.), Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)
Standstill. (a) The Buyer hereby agrees that, Security Holders agree that during the period commencing beginning on the Closing Date date of this Agreement and ending on the second annual anniversary thereof date on which the Security Holders Beneficially Own, in the aggregate, a number of shares of Common Stock representing less than 10% of the total number of shares of Common Stock (on a fully diluted basis taking into account all outstanding OP Units), then outstanding (such period, the “Standstill Period”), unless specifically invited in writing by without the prior written consent of the Company, the Buyer will not, and each Security Holder will not at any time, nor will it cause or permit any director, officer of its Affiliates or Affiliate any of the Buyer its or their Representatives (acting at its or their direction or on its or their behalf) to, in acquire, make any mannerproposal or offer to acquire, or propose or facilitate the acquisition of, directly or indirectly (including indirectly, by directing purchase or causing any other Person that is not the Buyer otherwise, record or a director, officer or Affiliate Beneficial Ownership of the Buyer):
(i) effect or seekany additional equity securities of the Company, offer or propose (whether publicly or otherwise) to effectincluding shares of Common Stock, or announce securities of the Company convertible, exchangeable, redeemable or exercisable into such equity securities (other than any intention to effect shares of Common Stock issued or cause issuable as a result of any stock split, stock dividend or participate distribution, subdivision, recapitalization or other similar transaction or upon redemption of OP Units for shares of Common Stock in accordance with the terms of the Operating Partnership Agreement), or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Aii) any acquisition debt securities of the Company or of any securities (of its subsidiaries or beneficial ownership thereof) other direct or rights indirect interests in loans or options to acquire any securities (or beneficial ownership thereof) of recourse indebtedness issued by the Company or any of its subsidiaries. During the Subsidiaries or Company Controlled Affiliates ifStandstill Period, after giving effect to any such acquisitionwithout the prior written consent of the Company, the Buyer and/or Security Holders agree that they will not at any Buyer Controlled Entity and/or Control Group Membertime, either individually nor will they cause or in the aggregatepermit any of their Affiliates or any of its or their Representatives (acting at its or their direction or on its or their behalf) to, would beneficially own more than nine and ninety-nine one hundredths percent directly or indirectly:
(9.99%i) of the shares of Common Stock then outstandingenter into, (B) agree to enter into, commence or submit any merger, consolidation, tender or offer, exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofcombination, (C) any share exchange, recapitalization, restructuring, liquidation, dissolution restructuring or other extraordinary transaction with respect to involving the Company Company, any subsidiary or division of the Company, or any of the Subsidiaries their respective securities or Company Controlled Affiliates assets or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or that would reasonably be expected to force require the Company to make a public announcement regarding the possibility of any such transaction;
(ii) tender into a tender or exchange offer commenced by a third party other than a tender or exchange offer that the Board has affirmatively publicly recommended to the Company’s stockholders that such stockholders tender into such offer and has not publicly withdrawn or changed such recommendation (and in the case of the types such a withdrawal or change of matters set forth in recommendation, it shall not be a breach of this clause (iii) above; or
(v) enter into any discussions if the tendered or arrangements with any third party with respect exchanged securities are withdrawn prior to any the expiration of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer such tender or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentenceexchange offer).;
Appears in 2 contracts
Sources: Security Holder's Agreement (Farmland Partners Inc.), Contribution Agreement (Farmland Partners Inc.)
Standstill. The Buyer You hereby agrees represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the Company. In consideration of the Evaluation Material being furnished or made available to you, you hereby agree that, during for a period of one (1) year from the period commencing on date hereof, unless invited in advance by the Closing Date and ending on Company Board to do so (which invitation will be expressly set forth in writing from the second annual anniversary thereof (the “Standstill Period”Company Board), unless specifically invited in writing by the Company, the Buyer you will not, and you will not permit cause your Representatives (other than third party advisors taking action on behalf of an unrelated person without breach of any director, officer or Affiliate of the Buyer other terms of this Agreement) not to, in any manner, directly or indirectly (including by directing indirectly, acting alone or causing any other Person that is not the Buyer or as part of a director, officer or Affiliate of the Buyer):
group: (i) effect or seekacquire, offer to acquire, or propose (whether publicly agree to acquire, directly or indirectly, by purchase or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Aa) any acquisition of any securities (whether equity, debt or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereofotherwise) of the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingExchange Act), (Bb) any tender right to vote or exchange offer, merger to direct the voting of any voting or other business combination involving equity securities of the Company or any of the Subsidiaries its subsidiaries, or Company Controlled Affiliates or any division or line of business of any thereof, (Cc) any recapitalization, restructuring, liquidation, dissolution direct or other extraordinary transaction with respect indirect rights to acquire any securities of the Company or any of the Subsidiaries or Company Controlled Affiliates its subsidiaries or any division thereofderivative securities with economic equivalents of ownership of any of such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or any portion of, directly or indirectly, any acquisition transaction or other business combination relating to all or any portion of the Company or any of its subsidiaries (Dwhether by way of merger, consolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the Company or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECUnited States Securities and Exchange Commission) to vote, or consents seek to vote advise or influence any person or entity with respect to the voting of, any voting securities of the Company;
Company or any of its subsidiaries; (iiiv) 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 the any securities of the Company or any of the Subsidiaries its subsidiaries; (v) seek or Company Controlled Affiliates;
(iii) otherwise actpropose, alone or in concert with others, to seek to influence or control the management or influence the management, the board of directors or the policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of the Subsidiaries board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (vii) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the Company Controlled Affiliates;
or its Representatives) any intention, plan or arrangement which if effected would violate this Paragraph 4.1; (ivix) request that the Company, the Company Board or any of their Representatives, directly or indirectly, amend or waive any provision of this Paragraph 4.1 (including this clause (ix)); (x) knowingly take any action which would or that would reasonably be expected to force require the Company or any of its Representatives to make a public announcement regarding any of the types of matters set forth activities referred to in clause clauses (i) abovethrough (ix) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this Agreement); or
or (vxi) enter into any discussions or arrangements agree with any third party with respect to take any of the foregoingforegoing actions. The Buyer further agrees provisions of this Paragraph 4.1 will terminate upon the earlier of: (a) the date that it shall notis two (2) years from the date hereof; and (b) the date on which (1) the Company sells or enters into a definitive agreement that would result in the sale of, and shall not permit (2) the Company Board approves any directortransaction that would result in any third party or “group” acquiring beneficial ownership of, officer or Affiliate (3) the Company Board recommends in favor of any tender or exchange offer that would, if consummated, result in any third party or “group” acquiring, 50% or more of the Buyer to, during the Standstill Period, directly or indirectly, publicly request outstanding voting securities of the Company (or the assets of the Company representing 50% or more of the consolidated earning power of the Company and its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)subsidiaries.
Appears in 2 contracts
Sources: Confidentiality Agreement (Project Diamond Intermediate Holdings Corp), Confidentiality Agreement (Onvia Inc)
Standstill. The Buyer You hereby agrees represent and warrant to the Company that neither you, nor any of your affiliates or any of your Representatives acting on your behalf, has beneficial ownership of any securities of the Company as of the date hereof. You agree that, during for a period of eighteen months from the period commencing on the Closing Date and ending on the second annual anniversary thereof date of this letter agreement (the “Standstill Restricted Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate Board of Directors of the Buyer toCompany (the “Board”), neither you nor any of your affiliates or Representatives acting on your behalf will in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any material assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or affiliates or assets of the Company Controlled Affiliates or any division the subsidiaries or line affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
, including consents or actions with respect to the calling of a special meeting of the Company’s shareholders or to advise or influence any person with respect to the voting of any voting securities or interests of the Company; (iib) deposit any voting securities of the Company in a voting trust or subject voting securities of the Company to a voting agreement or any other arrangement or understanding with respect to the voting of such securities; (c) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇1934 Act) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiid) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors Board, governing instruments, affairs or the policies of the Company or to obtain representation on the Board; (e) disclose or direct any of person to disclose, any intention, plan or arrangement inconsistent with the Subsidiaries or Company Controlled Affiliates;
foregoing; (ivf) take any action which would or would reasonably be expected to force result in a request by a court of competent jurisdiction or by a governmental body to disclose, or cause or require you or the Company to disclose or make a public announcement regarding regarding, any part of the information contained in the Evaluation Material or any matter of the types of matters set forth in clause this Section 10; (ig) above; or
(v) enter into make, engage in, or in any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Periodway participate in, directly or indirectly, publicly any request for, or effort to obtain, an inspection of the Company’s books and records; or (h) advise, assist or encourage or direct any person to advise, assist or encourage any other persons in connection with any of the foregoing; provided, however, that the foregoing shall not prevent or otherwise limit you from initiating or continuing any non-public discussions, requests or communications with the Company (or including the Board) and its directors, officers, employees or agents) financial and legal advisors (including any non-public request to amend or waive any provision of this Section 4(l) 10 (including this sentence) or making any non-public offer or proposal to the Company or the Board relating to the Possible Transaction or another potential transaction. Notwithstanding the foregoing, the Restricted Period will terminate immediately upon any person or group of persons (other than you) (a) entering into a definitive agreement with the Company providing for (i) a tender or exchange offer, merger or other business combination or extraordinary transaction providing for such third party’s acquisition of the Company or (ii) a sale, lease, exchange or other disposition of all or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis), or (b) commencing, or announcing the commencement of, a tender or exchange offer with respect to all or a majority of the outstanding common stock of the Company which offer has not been publicly rejected by the Board within ten (10) business days of the public announcement or commencement of such tender or exchange offer.
Appears in 2 contracts
Sources: Confidentiality Agreement (Science 37 Holdings, Inc.), Confidentiality Agreement (eMed, LLC)
Standstill. The Buyer hereby agrees that, during Unless approved in advance in writing by the period commencing on board of directors of the Closing Date and ending on the second annual anniversary thereof Company (the “Standstill Board”), Recipient agrees that none of Recipient, any Affiliate of Recipient nor any of their respective Representatives (acting on behalf of the Recipient or its Affiliate or at the direction of the Recipient or its Affiliate) will, for a period of one (1) year after the date of this letter agreement (the “Restricted Period”), unless specifically invited in writing by directly or indirectly:
(a) make any statement or proposal to the Board, any of the Company, the Buyer will not, and will not permit ’s Representatives or any director, officer or Affiliate of the Buyer Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, in any manneror otherwise solicit, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or solicit, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Aincluding, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of any of the Company’s loans, debt securities, equity securities (or beneficial ownership thereof) assets, or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or interests in any of the Subsidiaries Company’s loans, debt securities, equity securities or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingassets, (Biv) any tender proposal to seek representation on the Board or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors Board or the policies of the Company or any of the Subsidiaries Company, (v) any request or Company Controlled Affiliatesproposal to waive, terminate or amend the provisions of this letter agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this letter agreement, including this Section 14(a);
(ivb) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in clause (a) above;
(c) take any action which would or would reasonably be expected to force require the Company or any of its affiliates to make a public announcement regarding any of the types of matters actions set forth in clause (ia) above; or
(vd) enter into acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any discussions loans, debt securities, equity securities or arrangements with assets of the Company or any third party with respect of its subsidiaries, or rights or options to acquire interests in any of the foregoingCompany’s loans, debt securities, equity securities or assets. The Buyer Recipient further agrees that it shall notduring the Restricted Period, and shall not permit neither Recipient nor any director, officer or Affiliate of Recipient’s Representatives (acting on behalf of the Buyer to, during Recipient or its Affiliate or at the Standstill Perioddirection of the Recipient or its Affiliate) shall request the Company or any of its Representatives, directly or indirectly, publicly request the Company (to amend, waive or its directors, officers, employees or agents) to amend or waive terminate any provision of this Section 4(l14. Notwithstanding the foregoing, the provisions of this Section 14 shall be inoperative and of no force and effect if during the Restricted Period the Company has publicly announced that it has entered into a definitive transaction providing for (i) a merger, business combination, tender offer or other similar transaction involving the Company, which would result in any Person owning 50% or more of the aggregate outstanding equity securities of the Company or securities representing 50% or more of the voting power of the Company or (including this sentence)ii) a sale of all or substantially all of the assets of the Company.
Appears in 2 contracts
Sources: Confidentiality Agreement (Koninklijke Philips Nv), Confidentiality Agreement (Biotelemetry, Inc.)
Standstill. The Buyer hereby agrees that, during (a) During the period commencing on the Closing Date date hereof and ending on the second annual anniversary thereof of the date hereof (the “Standstill Share Acquisition Period”), unless specifically invited in writing by without the Company, the Buyer will not, and will not permit any director, officer or Affiliate prior consent of a majority of the Buyer toContinuing Directors, neither the Stockholder nor any of its Affiliates shall acquire, or propose to acquire, “beneficial ownership” (as defined in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate Section 13(d) of the Buyer):
(iExchange Act) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) equity securities, or rights or options to acquire any such securities (through purchase, exchange, conversion or beneficial otherwise), of the Company, including derivative securities representing the right to vote or economic benefits of any such securities, provided that the Stockholder and its Affiliates shall be permitted to acquire an additional 1,405,374 shares of Common Stock of the Company (as adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction prior to the expiration of the Share Acquisition Period) (the “Additional Shares”), provided, further, that the Stockholder and its Affiliates ownership thereofin the outstanding Common Stock of the Company shall not exceed thirty percent (30%) of the then outstanding Common Stock when combined with other Equity Interests of the Company beneficially owned by HNH, the Stockholder or any of their respective Affiliates as of the Subsidiaries or Company Controlled Affiliates if, date hereof (after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually transactions contemplated by the Investment Agreement (excluding the issuance or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) exercise of the Warrants)) (which, for purposes of such calculation, shall include shares of Common Stock then outstandingissuable upon conversion of then-outstanding preferred stock) (the “30% Cap”) during the Share Acquisition Period, provided, however, that, notwithstanding the foregoing restrictions (including, without limitation, the 30% Cap), the Stockholder and its Affiliates (including HNH) shall be permitted to acquire (i) the Additional Shares, (Bii) the Common Stock underlying the Warrants set forth and in accordance with the terms of the Warrants and (iii) securities as a result of, or offered pursuant to, any tender share division or exchange offersplit, merger share consolidation, stock/share dividend or equivalent under Delaware law, combination, recapitalization, rights offering or similar events. Notwithstanding the foregoing, in the event that the number of outstanding shares of Common Stock is either increased or decreased (other than in the case of buy-back of Common Stock made available by the Company to all of the stockholders of the Company) after the date hereof (other than in connection with the exercise of the Warrants), the number of Additional Shares that the Stockholder and its Affiliates shall be permitted to acquire shall be increased or decreased, as applicable, proportionate to the increase or decrease, as applicable, in total outstanding shares of Common Stock.
(b) In addition to the waiver granted by the Board under Section 203 of the Delaware General Corporation Law referenced in Section 3.2(c) of the Investment Agreement (and effective as of the consummation of the issuance of Common Stock and the Warrant contemplated by the Investment Agreement), the Stockholder hereby formally requests and the Board has granted a waiver and exemption to the Stockholder and its Affiliates under and in accordance with that certain Tax Benefit Preservation Plan, dated as of October 17, 2011, between the Company and American Stock Transfer & Trust Company, LLC, as Rights Agent, as amended by Amendment No. 1 to Tax Benefit Preservation Plan, dated as of March 21, 2012, by and between the Company and American Stock Transfer & Trust Company, LLC, as Rights Agent (the “Tax Plan”), and otherwise modified that certain Rights Agreement, dated as of March 21, 2012, between the Company and American Stock Transfer & Trust Company, LLC, as Rights Agent (the “Rights Plan”, and together with the Tax Plan, the “Rights Agreements”) (and which waivers, exemptions and modifications shall terminate and revert back, as applicable, automatically in the event this Agreement or the Investment Agreement are terminated prior to the consummation of the issuance of such Common Stock and Warrant), to permit (x) the entering into of this Agreement and the Investment Agreement, and (y) subject to the consummation of the issuance of Common Stock and the Warrant contemplated by the Investment Agreement, the acquisition of the securities permitted to be acquired pursuant to Section 5(a), provided that for the avoidance of doubt, such waivers, exemptions and modifications to the Rights Agreements, as applicable, shall not expire upon expiration of the Share Acquisition Period as they relate to the acquisition of the Additional Shares, the Common Stock underlying the Warrants (set forth and in accordance with the terms of the Warrants) and any securities acquired pursuant to subclause (iii) of Section 5(a).
(c) Notwithstanding anything in this Agreement to the contrary, in no event shall the Stockholder and its Affiliates be permitted to acquire shares of Common Stock or other business combination involving securities or instruments in accordance with Section 5(a) that would result in an “ownership change” of the Company or any for purposes of Section 382 of the Subsidiaries Internal Revenue Code of 1986, as amended.
(d) For the avoidance of doubt, any such waiver shall not restrict the ability of the majority of the members of the Continuing Directors Committee or, if there are less than three (3) Continuing Directors, the majority of the directors on the Board who are independent and disinterested as to such matters at such time, to put in a place, a new stockholders’ rights plan (which authority is hereby irrevocably devolved to such Continuing Directors Committee and directors), provided that such new plan continues to permit the Stockholder and its Affiliates to purchase the additional securities permitted by this Agreement under Section 5(a) during or Company Controlled Affiliates or any division or line of business of any thereoffollowing the Share Acquisition Period (including, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofWarrants, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect at all times prior to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentenceexpiration thereof).
Appears in 2 contracts
Sources: Settlement Agreement (ModusLink Global Solutions Inc), Settlement Agreement (Handy & Harman Ltd.)
Standstill. (a) The Buyer Investors hereby agrees that, during the period commencing on agree that from the Closing Date until the earliest of (i) such time as the Investors and ending on their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the second annual outstanding Common Stock, (ii) the fourth (4th) anniversary thereof hereof or (the “Standstill Period”), unless specifically invited in writing by iii) a Change of Control of the Company, without the Buyer will not, and will not permit any director, officer or Affiliate prior written approval of the Buyer toCompany, in neither the Investors nor any mannerof its Affiliates will, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) effect or seekacquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to effectenter into, or announce otherwise be involved in or part of, any intention acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to effect a single purchaser or cause a “group” as defined in Section 13(d) of the Exchange Act, merger or participate other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any securities director to the Board;
(iv) call or beneficial ownership thereof) or rights or options seek to acquire any securities (or beneficial ownership thereof) call a meeting of the Common Stockholders of the Company or any of the Subsidiaries Company’s subsidiaries or Company Controlled Affiliates if, after giving effect to initiate any such acquisition, stockholder proposal for action by the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities Stockholders of the Company;
(ii) , form, join or in 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;
(v) deposit any Securities of the securities Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the Subsidiaries following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or Company Controlled Affiliatesany of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) otherwise act, alone on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or in concert with others, consent solicitation subject to seek to control or influence the management, the board of directors or the policies Section 14 of the Company Exchange Act to elect or remove any directors of the Subsidiaries or Company Controlled AffiliatesCompany;
(iv) take any action which would on the adoption by the Board of Directors of a plan of liquidation or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) abovedissolution; or
(v) enter into on the occurrence of any discussions or arrangements with any third party with respect to material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the foregoingInvestors to the Company setting forth such alleged breach with specificity. The Buyer further agrees that it shall not, and shall Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not permit any director, officer or Affiliate acquire more than fifty percent (50%) of the Buyer tooutstanding Voting Securities of the Company, during (v) the Standstill Periodwithdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, directly or indirectlythe termination of, publicly request an agreement to effect a Change of Control, or the Company decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or its directorsa duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, officers(x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), employees (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or agents(z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to amend or waive the extent then suspended as a result of any provision of other event specified in this Section 4(l5.1(b)) (including shall again be applicable for so long as and only to the extent provided in this sentence)Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (Trade Street Residential, Inc.), Stockholders Agreement (Trade Street Residential, Inc.)
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates; provided, however, that nothing contained in this clause (iii) shall limit the rights of the Buyer under the Investor Rights Agreement;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including 4(o)(including this sentence).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Meta Financial Group Inc), Securities Purchase Agreement (Meta Financial Group Inc)
Standstill. The Buyer hereby agrees that, during 11.1 For a period of five (5) years after the period commencing on the Closing Date and ending on the second annual anniversary thereof date hereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will Manchester shall not, and will shall cause each of its Subsidiaries not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect directly or seekindirectly, acquire, seek to acquire or make an offer or propose (whether publicly or otherwise) to effectacquire, or announce any intention to effect or cause or participate in alone or in concert with others, whether by purchase, gift, business combination or otherwise (a Transaction), any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition number of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifEquity Securities such that, after giving effect to any such acquisitionTransaction, the Buyer and/or any Buyer Controlled Entity and/or Control Manchester Group Member, either individually or in the aggregate, (taken as a whole) would beneficially own own, directly or indirectly, an aggregate number of Arsenal Shares representing (as a percentage) more than nine and ninety-nine one hundredths percent the lesser of (9.99%A) of the shares of Common Stock then outstanding, Coniston Closing Percentage or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage (the lesser of (A) or (B) is hereinafter referred to as the Maximum Arsenal Percentage), in each case unless such Transaction is approved by the Audit Committee of the Arsenal Board prior to the consummation thereof, (ii) propose to enter into or seek to effect, directly or indirectly, alone or in concert with others, any tender or exchange offermerger, merger consolidation, recapitalization, reorganization or other business combination involving the Company Arsenal or any of the its Subsidiaries or Company Controlled Affiliates to purchase, directly or any division indirectly, alone or line in concert with others, a material portion of the business or assets of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company Arsenal or any of its Subsidiaries, (iii) for so long as a Manchester Director is serving on the Subsidiaries Arsenal Board, initiate or Company Controlled Affiliates or propose any division thereofsecurity holder proposal, (iv) make, or (D) in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A under the proxy rules of Exchange Act) whether or not such solicitation is exempt under Rule 14a-2 under the SEC) or consents Exchange Act, to vote or act by written consent, or seek to advise or influence any person with respect to the voting securities of, or the execution of a written consent in respect of any Equity Securities of Arsenal or any of its Subsidiaries or become a “participant” in a “solicitation” of proxies (as such terms are defined in Regulation 14A under the Company;
Exchange Act), in each case with respect to the election of directors to the Arsenal Board, or, for so long as a Manchester Director is serving on the Arsenal Board, with respect to any other matter, (iiv) deposit any Equity Securities into a voting trust or subject any such Equity Securities to any arrangement or agreement with respect to the voting thereof by or together with any person other than Manchester, (vi) form, join join, knowingly influence, participate in or knowingly encourage the formation of any 13D Group with respect to any Equity Securities, (vii) except as specifically permitted by this Agreement, seek election to or seek to place a representative or other Affiliate or nominee on the Arsenal Board or seek the removal of any member of the Arsenal Board other than for cause or in accordance with the recommendation of the Arsenal Nominating and Governance Committee or the Arsenal Board, (viii) for so long as a Manchester Director is serving on the Arsenal Board, initiate, propose or knowingly take any way participate public action in support of any security holder proposal to, or otherwise seek to have Arsenal amend its by-laws or its certificate of incorporation, (ix) other than in a public offering or a Rule 144 broker transaction, sell, transfer or otherwise dispose of any Equity Securities to any Person or 13D Group who is prior to the consummation of such sale, transfer or other disposition known to Manchester to be a beneficial owner of 5% or more of the outstanding Equity Securities (other than a beneficial owner who has filed or is eligible to file a Schedule 13G under the Exchange Act), (x) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or (xi) publicly disclose a willingness or desire to have any other Person engage in, any of the transactions or actions described in this Section 11.1. Manchester also agrees not to, and to cause each of its Subsidiaries during the Standstill Period not to, request Arsenal or its Representatives, directly or indirectly, to amend or waive any provisions of this Section 11 (including this sentence), other than through a direct non-public communication by the CEO of Manchester to the CEO or non-executive Chairman of Arsenal (and to no other Person) that would not reasonably be expected to require any public disclosure on the part of Arsenal or Manchester and that is not thereafter voluntarily disclosed by Manchester except as required by Law or any UK Regulatory Requirement. Nothing in this Section 11.1 shall limit Manchester’s power and right to purchase or acquire, directly or indirectly, any Person (an Acquired Person) that at the time of such acquisition owns Arsenal Shares so long as such Arsenal Shares represent no more than 5% of the total assets of such Acquired Person at the time of such acquisition (an Excepted Transaction); provided, that if Manchester completes an Excepted Transaction, it shall notify Arsenal promptly upon learning that an Acquired Person owns Arsenal Shares. If Manchester’s acquisition, directly or indirectly, of Arsenal Shares pursuant to an Excepted Transaction would result in Manchester’s beneficial ownership being in excess of the Maximum Arsenal Percentage, then in such event the Maximum Arsenal Percentage shall be increased by a percentage determined by dividing (x) only such number of Arsenal Shares purchased or acquired in connection with such Excepted Transaction that would result in Manchester beneficially owning an amount of Arsenal Shares in excess of the Maximum Arsenal Percentage by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, however, that in the event Manchester or any of its Subsidiaries, at any time after an Excepted Transaction, directly or indirectly, sells, transfers or otherwise disposes of any Arsenal Shares or such Acquired Person, then, in such event, the Maximum Arsenal Percentage shall be decreased by a percentage determined by dividing (x) the amount of Arsenal Shares owned by such Acquired Person or sold, transferred or otherwise disposed of by Manchester or any of its Subsidiaries by (y) the number of then issued and outstanding Arsenal Shares, and such modified Maximum Arsenal Percentage shall remain in full force and effect; provided, further, that in no event shall the Maximum Arsenal Percentage be decreased below the lesser of (A) the Coniston Closing Percentage or (B) (1) if the Emerald Closing does occur (but the Contingent Repurchase does not occur), 2% above the Emerald Closing Percentage or (2) if the Contingent Repurchase occurs, 2% above the Contingent Repurchase Closing Percentage, without giving effect, in the case of each of clauses (A) and (B), to any Excepted Transaction.
11.2 If any member of the Manchester Group inadvertently acquires any Equity Securities in violation of this Agreement, such member of the Manchester Group shall, as soon as it becomes aware of such violation, (a) give immediate notice to Arsenal and (b) subject to Section 11.1(ix), immediately dispose of such Equity Securities to Persons who are not members of the Manchester Group or Affiliates of any member thereof; provided that if the applicable member of the Manchester Group fails to comply with this Section 11.2 within ten (10) business days after becoming aware of such violation, Arsenal may also pursue any other available remedy to which it may be entitled as a result of such violation.
11.3 In furtherance of the transactions contemplated hereby and by the Framework Agreement, Manchester covenants and agrees that neither Manchester nor any of its controlled Affiliates will:
(a) for a period of eighteen (18) months after the Coniston Closing, directly or indirectly (including by partnering with third parties) deploy, sell, license or market any electronic medical health record or physician practice management software, related applications or solutions (the Restricted Activities), in any country in the world where Arsenal is conducting Restricted Activities on the date hereof; provided, however, that the reference to “grouprelated applications or solutions” in the definition of Restricted Activities shall not preclude ▇▇▇▇ from conducting its business as conducted on the date of the Framework Agreement or reasonable extensions thereof in the healthcare information exchange market which, for the avoidance of doubt, will in no event include electronic medical health record or physician practice management software; or
(b) for a period of eighteen (18) months after the Coniston Closing, utilize the name “Misys” or any trade name, trademark, brand name, domain name or logo containing or associated with the name “Misys” (within collectively, the meaning of Manchester Marks) in connection with any healthcare information technology solutions, or grant to any third party the right or license to use the Manchester Marks in connection with any healthcare information technology solutions anywhere in the world.
11.4 Notwithstanding anything contained in Section 13(d)(311.3(b) of to the contrary, Misys Open Source Solutions, LLC (▇▇▇▇) shall be permitted to utilize the ▇▇▇▇ name or any trade name, trademark, brand name, domain name or logo relating to ▇▇▇) ▇ in connection with respect to the securities of the Company or healthcare information technology solutions other than in connection with any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Restricted Activities.
Appears in 2 contracts
Sources: Relationship Agreement (Allscripts-Misys Healthcare Solutions, Inc.), Relationship Agreement (Misys PLC)
Standstill. The Buyer hereby agrees thatInvestors agree that until the later of (x) the third anniversary of the date of this Agreement, during and (y) the period commencing date on which the Closing Date and ending on Investors no longer have the second annual anniversary thereof (right to designate or nominate a Director Nominee pursuant to Section 1, without the “Standstill Period”), unless specifically invited in writing by prior written consent of the Company, the Buyer will not, and such Investors will not at any time, nor will they cause or permit any director, officer or Affiliate of their respective controlled Affiliates (as defined in the Buyer Purchase Agreement) to, in any manner, directly or indirectly : (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person (as defined in the Purchase Agreement) to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the its Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or (as defined in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingPurchase Agreement), (Bii) any tender or exchange offer, merger or other business combination involving the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division or line assets of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any its Subsidiaries constituting a significant portion of the Subsidiaries or consolidated assets of the Company Controlled Affiliates or any division thereofand its Subsidiaries, or (Diii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
Company or any of its Subsidiaries; (iib) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or otherwise act in concert with any Person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors Board or the policies of the Company or any to obtain representation on the Board of the Subsidiaries or Company Controlled Affiliates;
(ivother than pursuant to the terms of this Agreement); (d) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees ; it being understood that it nothing in this Section 3 shall not(x) restrict or prohibit the Appointed Director from taking any action, and shall not permit or refraining from taking any directoraction, officer which he or Affiliate she determines, in his or her reasonable discretion, is necessary to fulfill his or her fiduciary duties as a member of the Buyer toBoard (y) restrict the Investors’ acquisition of any Equity Securities paid as dividends or acquired pursuant to Section 4 of this Agreement, during in each case, in accordance with the Standstill Periodterms of this Agreement, directly or indirectly, publicly request (z) restrict the Investors acquisition of equity or debt securities of the Company or any of its Subsidiaries, or voting such securities (subject to the provisions of Section 2) and otherwise exercising its rights and privileges with respect to such securities, so long as such acquisition, voting or its directorsexercise of the rights and privileges, officers, employees would not constitute a violation of clauses (a)(ii) and (iii) or agents(b) to amend or waive any provision of this Section 4(lthrough (e) (including this sentence)above.
Appears in 2 contracts
Sources: Investor Rights Agreement (Act III Holdings LLC), Investor Rights Agreement (BJs RESTAURANTS INC)
Standstill. The Buyer (a) SANOFI-AVENTIS hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), Period unless specifically invited in writing by the CompanyMERRIMACK to do so, the Buyer neither SANOFI-AVENTIS nor any of its Affiliates will, or will not, and will not cause or knowingly permit any directorof its or their directors, officer officers, employees, investment bankers, attorneys, accountants or Affiliate of the Buyer other advisors or representatives to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assistadvise or, facilitate or encourage assist any other Person person to effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect or cause or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) assets of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) MERRIMACK; any tender or exchange offer, merger merger, consolidation or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) MERRIMACK; any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company MERRIMACK; or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the CompanyMERRIMACK;
(ii) form, join or in any way participate in a “group” (within as defined under the meaning Securities Exchange Act of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇1934, as amended) with respect to the any securities of the Company or any of the Subsidiaries or Company Controlled AffiliatesMERRIMACK;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board Board of directors Directors or the policies of MERRIMACK (except as contemplated by this Agreement in relation to the Company Parties’ co-development or any commercialization of the Subsidiaries or Company Controlled AffiliatesCollaboration Compounds and Licensed Product(s));
(iv) take any action which would or would could reasonably be expected to force the Company MERRIMACK to make a public announcement regarding any of the types of matters set forth in clause (i) abovethis Section 16.3; or
(v) enter into any agreements, discussions or arrangements with any third party Third Party with respect to any of the foregoing. The Buyer further agrees .
(b) Nothing in this Section 16.3 shall prohibit SANOFI-AVENTIS or its Affiliates from owning or making open market purchases of any voting securities of MERRIMACK, or any securities convertible into or exercisable for any such voting securities, in each case for purposes of any 401(k) or similar benefit plan maintained by SANOFI-AVENTIS or its Affiliates for its or their employees, provided that it such voting securities shall not, and shall not permit any directorin the aggregate, officer or Affiliate exceed 5% of the Buyer tovoting power of MERRIMACK’s outstanding securities, during and provided that SANOFI-AVENTIS and its Affiliates will not in any way request or direct that the Standstill Period, directly trustee or indirectly, publicly request other administrator of any plan acquire any voting securities of MERRIMACK.
(c) For the Company (or its directors, officers, employees or agents) to amend or waive any provision purposes of this Section 4(l16.3, the term “Standstill Period” shall mean the period commencing on the Effective Date and ending on the later to occur of (i) the [**] anniversary of the Effective Date or (including this sentence)ii) the [**] anniversary of the closing of the initial public offering of MERRIMACK’s common stock.
Appears in 2 contracts
Sources: License and Collaboration Agreement (Merrimack Pharmaceuticals Inc), License and Collaboration Agreement (Merrimack Pharmaceuticals Inc)
Standstill. The Buyer hereby agrees that, during (a) During the period commencing on the date of this Agreement and continuing until the thirty-six (36) month anniversary of the Closing Date and ending on the second annual anniversary thereof (the “Standstill PeriodTermination Date”), except for any time during such thirty-six (36) month period during which the Investor Group collectively Beneficially Owns less than ten percent (10%) of the outstanding shares of Common Stock, unless such action shall have been specifically invited in writing by the CompanyBoard, the Buyer will not, EnCap shall not and will shall cause its Controlled Affiliates (other than Public Portfolio Companies) not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer)::
(i) effect make any proposal or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company Board or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofCompany’s stockholders regarding, or make any public announcement, proposal or offer (D) including any “solicitation” of “proxies” (as such terms are defined or used in the proxy rules Regulation 14A of the SECExchange Act) with respect to, or consents otherwise solicit, seek or offer to vote effect (i) any voting securities business combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring, recapitalization, liquidation or similar transaction involving the CompanyCompany or any of its subsidiaries; provided, however, that nothing in this Section 3.7(a) shall prohibit EnCap or a Controlled Affiliate of EnCap from privately communicating any such proposal or offer to the Company so long as such private communications do not trigger public disclosure obligations of or for any Person (including the filing of a Schedule 13D or Schedule 13G or any amendment thereof);
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) any Group with any Person with respect to any Common Stock other than forming, joining or in any way participating in a Group solely between or among (i) EnCap and its Affiliates or (ii) EnCap and its Affiliates and any other Permitted Transferee with respect any shares of Common Stock Transferred to any such Permitted Transferee not in violation of the securities terms of this Agreement;
(iii) enter, agree to enter, propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its subsidiaries (unless such transaction is affirmatively publicly recommended by the Subsidiaries or Company Controlled AffiliatesBoard);
(iiiiv) otherwise actact with any Person, alone or in concert with othersincluding by providing financing for another party, to seek to control or influence the management, the board of directors Board or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivv) take acquire, agree or propose or offer to acquire (including through any action which would hedging or would reasonably be expected other similar transaction) any Common Stock or securities that are convertible or exchangeable into (or exercisable for) Common Stock, other than as a result of any stock split or stock dividend of voting securities of the Company; provided, however, that these restrictions shall not apply to force any acquisition of, or agreement or proposal to acquire, Common Stock of the Company to make a public announcement regarding if immediately following any such acquisition or contemplated acquisition EnCap and its Controlled Affiliates collectively Beneficially Own no more than the greater of the types of matters set forth in clause (i) above[●] ([●]) shares of Common Stock (as appropriately adjusted for any stock split, stock dividend or similar transaction) and (ii) [●] percent ([●]%) of the outstanding shares of Common Stock2;
(vi) call, or seek to call, a meeting of the stockholders of the Company or initiate any stockholder proposal for action by stockholders of the Company;
(vii) publicly disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing;
(viii) except as expressly permitted by this Agreement or required under the order of a court of competent jurisdiction, transfer any Common Stock into a voting trust or similar contract or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock, in each case other than (A) to the Company or a person specified by the Company in a proxy card provided to shareholders of the Company by or on behalf of the Company or (B) solely among EnCap and its Affiliates and any other Permitted Transferee with respect any shares of Common Stock Transferred to any such Permitted Transferee not in violation of the terms of this Agreement; or
(vix) enter into any discussions knowingly facilitate, encourage or arrangements with assist any third party with respect to do any of the foregoing. .
(b) The Buyer Investor and EnCap further agrees agree that it they shall not, and shall not permit any directorcause their Controlled Affiliates (other than Public Portfolio Companies) to not, officer or Affiliate without the prior written consent of the Buyer to, during the Standstill Period, directly or indirectlyCompany, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) 3.7 (including this sentence)) or do so in any other manner that would require the Company to publicly disclose such request.
(c) Notwithstanding the foregoing, the parties agree and acknowledge that (i) EnCap and its Controlled Affiliates may vote their shares of Common Stock at any meeting of holders of Common Stock in their sole discretion, (ii) the limitations set forth in this Section 3.7 shall in no way limit the activities of any Investor Director, so long as such activities are undertaken in his or her capacity as a director of the Company, or limit any communication between or among EnCap and its Affiliates or any Permitted Transferee with respect to any shares of Common Stock Transferred to any such Permitted Transferee, (iii) EnCap and its Affiliates may coordinate any such vote with, act in concert with, and be part of a Group with, any other Affiliate of EnCap or any Permitted Transferee with respect to any shares of Common Stock Transferred to any such Permitted Transferee, and (iv) nothing in this Section 3.7 shall apply to potential or actual purchases or sales of oil and/or gas assets or interests between EnCap or any of its Affiliates, on the one hand, and the Company or any of its subsidiaries, on the other hand. 2 NTD: Numbers to reflect ownership immediately after the closing of the transactions.
Appears in 2 contracts
Sources: Securities Purchase Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.)
Standstill. The Buyer Each of the Glencore Parties hereby agrees that, during until the period commencing on fifth anniversary of the Closing Date and ending on the second annual anniversary thereof date hereof (such period, the “Standstill Period”), unless specifically invited in writing by the Companyboard of directors or other authorized representatives who have been designated in writing by the Company (and only to the extent set forth in such invitation), the Buyer will notneither Glencore Party shall, and will not permit each shall cause any directorother Person that controls, officer is controlled by or Affiliate is under common control with the Glencore Party (“Affiliates”) and its representatives (in the case of such representatives, acting on behalf, or at the Buyer todirection, of such Glencore Party or its Affiliates) to not, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assistin, facilitate or knowingly encourage (including, without limitation, through the provision of financing) any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, :
(Ai) any acquisition of any voting securities (or beneficial ownership thereof) ), or rights or options to acquire any voting securities (or beneficial ownership thereof) ), of the Company or its subsidiaries;
(ii) any acquisition of any material assets, indebtedness or businesses of the Subsidiaries Company or its subsidiaries (other than (i) any acquisition of commodities or other products of the Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent ordinary course of business or (9.99%ii) trade credit extended to the Company in the ordinary course of the shares of Common Stock then outstanding, business);
(Biii) any tender offer or exchange offer, merger or other business combination involving the Company Company, or any of the Subsidiaries subsidiaries or assets of the Company Controlled Affiliates or any division or line its subsidiaries constituting a material portion of business the consolidated assets of any thereof, the Company and its subsidiaries;
(Civ) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or its subsidiaries; or
(Dv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents votes or any other attempt to influence votes from or by any holder of any voting securities of the Company in connection with any vote of the holders of any such securities;
(b) form, join or in any way communicate or associate with other security-holders or participate in a “group” (as such term is defined under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), with respect to the Company or any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iiic) otherwise act, alone or in concert with others, (i) to seek or obtain representation on or to control control, change, advise or influence the management, the board of directors or the policies of the Company or any of its subsidiaries, or (ii) to propose any matter to be voted upon by the Subsidiaries shareholders of the Company or that any meeting of the shareholders of the Company Controlled Affiliatesbe called or held;
(ivd) take disclose or direct any action which would person to disclose any intention, plan or would reasonably be expected to force arrangement inconsistent with the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveforegoing; or
(ve) enter into advise, assist or encourage or direct any discussions person (including serving as a financing source for any other person) to advise, assist or arrangements encourage any other persons in connection with any third party with respect to any of the foregoing. The Buyer further Each Glencore Party hereby represents and warrants that, as of the date hereof, neither such Glencore Party nor any of its Affiliates owns, beneficially or of record, any common shares or other securities of the Company. Each Glencore Party hereby agrees that neither it shall notnor its Affiliates or its or their representatives (in the case of such representatives, and shall not permit acting on behalf, or at the direction, of such Glencore Party or its Affiliates will in any director, officer or Affiliate of the Buyer to, during the Standstill Periodmanner, directly or indirectly, publicly request the Company (or any of its directorsrepresentatives to, officersdirectly or indirectly, employees or agents) to amend or waive any provision of this Section 4(l) 1 (including this sentence) if the making of such request would require the Company or either of the Glencore Parties to make a public disclosure regarding such request under applicable laws, provided that nothing in this paragraph will obligate the Company to agree to such amendment or waiver. Notwithstanding the foregoing, (x) none of (i) the purchase by Glencore of the Note, (ii) the partial or full conversion of the Note by Glencore, or (iii) the exercise of any warrants received by Glencore in connection with the redemption of the Note, shall violate or breach or result in a violation or breach of any terms or conditions of this Standstill Agreement, (y) the Glencore Parties shall be permitted to acquire additional voting securities (or beneficial ownership thereof), or rights to acquire voting securities (or beneficial ownership thereof), of the Company pursuant to this clause (y) so long as the aggregate beneficial ownership of voting securities or rights to acquire voting securities of the Company acquired pursuant to this clause (y) (on an as-converted, as-exercised basis) does not exceed 5.0% of the then-outstanding voting securities of the Company; and (z) the Glencore Parties may initiate and engage in private, nonpublic discussions with, and submit confidential proposals to, the board of directors of the Company or other authorized representatives who have been designated in writing by the Company, in each case with respect to a potential transaction or any other matter described in this Section 1; provided, in the case of this clause (z), that any such proposal (i) shall be conditioned on the written approval of the board of directors of the Company and (ii) shall not reasonably require any public disclosure. The provisions of this Section 1 will be of no further force and effect in the event:
i. any person or group shall have acquired or entered into a definitive agreement with the Company to acquire more than 50% of the outstanding voting equity securities of the Company or assets of the Company representing more than 50% of its consolidated earning power;
ii. the Company or its board of directors enters into, agrees to enter into, gives notice of a meeting of its securityholders to consider, publicly indicates its support of, or announces an intention to proceed with any amalgamation, arrangement, merger, takeover bid or any other similar business combination or transaction involving the Company and another party or any other transaction relating to the acquisition of at least a majority of the securities or assets of the Company; or
iii. any third party (A) concurrently (x) “commences a tender offer” (within the meaning of Rule 14d-2 under the Exchange Act) or exchange offer for more than 50% of the outstanding voting securities of the Company and (y) makes a “takeover bid” (within the meaning of National Instrument 62-104 — Take-Over Bids and Issuer Bids (“NI 62-104”)) for such number of the outstanding voting securities of the Company which constitute more than 50% of the votes attaching to all outstanding voting securities of the Company that is not exempt from Part 2 of NI 62-104, and (B) within 15 Business Days thereafter, the Company’s board of directors does not recommend that its shareholders reject such offer and take-over bid.
Appears in 2 contracts
Sources: Note Purchase Agreement (Li-Cycle Holdings Corp.), Standstill Agreement (Li-Cycle Holdings Corp.)
Standstill. The Buyer Each Seller Party (on behalf of itself and its controlled Affiliates) hereby agrees that, during from the period commencing on date hereof until the Closing Standstill Termination Date and ending on the second annual anniversary thereof (the “Standstill Period”as defined in Section 5.3), unless specifically invited in writing by the Company, the Buyer will not, and will not permit neither such Seller Party nor any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):its controlled Affiliates will:
(ia) effect purchase or seekotherwise acquire, offer or propose (whether publicly or otherwise) to effectacquire, or announce any intention solicit an offer to effect sell or cause agree to acquire, directly or participate in indirectly, alone or in any way assistconcert with others, facilitate beneficial or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition record ownership of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) shares of the Company capital stock of Nasdaq or any Derivative Securities (excluding shares and securities received by way of the Subsidiaries stock dividend, stock reclassification or Company Controlled Affiliates other distributions or offerings made available on a pro rata basis to Nasdaq’s stockholders) if, after giving effect to any such acquisitionthereto, the Buyer and/or Seller Parties, their controlled Affiliates and all groups of which any Buyer Controlled Entity and/or Control Group Member, either individually Seller Party or in the aggregate, any of its controlled Affiliates is a member would beneficially own more than nine and ninetyan amount of shares of capital stock of Nasdaq, including any Derivative Securities on an as-nine one hundredths percent (9.99%) exercised, converted or exchanged basis, as applicable, in excess of the Seller Party Threshold; provided, however, that, if as a result of a reduction in the number of shares of Common Stock then outstandingoutstanding due to the repurchase of shares of Common Stock by Nasdaq, the Seller Parties beneficially own an amount of shares of capital stock of Nasdaq, including any Derivative Securities on an as-exercised, converted or exchanged basis, as applicable, in excess of the Seller Party Threshold, the Seller Parties shall not be in violation of this Section 5.1(a) so long as the Seller Parties do not take any of the actions referred to in the first clause of this Section 5.1(a) and the Seller Parties comply with Section 2.1(e) hereof;
(Bb) make, or in any tender way participate in, directly or exchange offerindirectly, merger alone or other business combination involving the Company in concert with others (including by or through any group of which any Seller Party or any of the Subsidiaries or Company Controlled its Affiliates or any division or line of business of any thereofis a member), (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote securities of Nasdaq or to provide or withhold consents with respect to securities of Nasdaq, whether subject to or exempt from the proxy rules of rules, or seek to advise or influence any person or entity with respect to, the SEC) voting of, or consents to vote the providing or withholding consent with respect to, any voting securities of the CompanyNasdaq;
(iic) either directly or indirectly in concert with others (including by or through any group of which any Seller Party or any of its controlled Affiliates is a member) make any offer with respect to, or make or submit a proposal with respect to, or ask or request any other person to make an offer or proposal with respect to, or in any other way support, any transaction that would, if consummated, be reasonably likely to result in a Change of Control, including a merger, business combination, restructuring, reorganization, recapitalization, tender or exchange offer or asset disposition involving Nasdaq or any of its Affiliates;
(d) except as provided in Article III hereof, either directly or indirectly in concert with others (including by or through any group of which any Seller Party or any of its controlled Affiliates is a member) seek representation on the Board of Directors or the board of directors or equivalent of any of Nasdaq’s controlled Affiliates, seek to remove any members of the Board of Directors or expand or reduce the size of the Board of Directors or otherwise act alone or in concert with others (including by or through any group of which any Seller Party or any of its controlled Affiliates is a member) to make public statements or otherwise seek to control or influence the management or Board of Directors of Nasdaq or any of its controlled Affiliates;
(e) 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 the any securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveNasdaq; or
(vf) either directly or indirectly in concert with others (including by or through any group of which any Seller Party or any of its controlled Affiliates is a member) publicly announce or disclose any intention, or enter into or disclose any discussions plan or arrangements arrangement inconsistent with any third party with respect to any the foregoing (including publicly making a request that Nasdaq or the Board of the foregoing. The Buyer further agrees that it shall notDirectors waive, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive terminate any provision provisions of this Section 4(l) (including this sentenceStockholders’ Agreement or making such a request if such request would reasonably be likely to require public disclosure by any Person or otherwise result in public disclosure).
Appears in 2 contracts
Sources: Stockholders' Agreement (Nasdaq, Inc.), Merger Agreement (Nasdaq, Inc.)
Standstill. The Buyer hereby (a) Investor agrees thatthat until the earliest to occur of (x) Investor ceasing to beneficially own at least 2% of the Total Common Stock of the Company for a period of at least 90 consecutive days, during (y) the period commencing on fifth anniversary of the Closing Date and ending on or (z) the second annual anniversary thereof Release Date, neither Investor, nor any Investor Controlled Entity, Parent Entity, Affiliate of Investor (other than any officer or director of Investor and/or a Parent Entity who is not acting in concert with respect to the “Standstill Period”)Total Common Stock with Investor or any Investor Controlled Entity, unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer Parent Entity or Affiliate of Investor with respect to the Buyer to, in Total Common Stock (an “Independent Holder”)) or 13D Group of which Investor or any mannerof its Affiliates (other than any Independent Holder) is a member shall, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) except at the specific written request of the Company or pursuant to a Competing Bid, propose to enter into, directly or indirectly, any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries or divisions;
(ii) except as permitted by clause (i) of this Section 5.03(a) or pursuant to exercise of the Subsidiaries Warrants, acquire additional shares of Voting Stock without the consent of the Board if the effect of such acquisition would be to increase the percentage of Total Common Stock of the Company beneficially owned by Investor, any Investor Controlled Entity, Parent Entity, Affiliate of Investor (other than any Independent Holder) or Company Controlled Affiliates 13D Group of which Investor or any division or line of business its Affiliates (other than any Independent Holder) is a party, including any Voting Stock issuable upon the exercise of any thereofWarrants, to more than 10% of the Total Common Stock;
(Ciii) any recapitalization, restructuring, liquidation, dissolution solicit or other extraordinary transaction participate in the solicitation of proxies with respect to any Voting Stock, or seek to advise or influence any person with respect to the voting of any Voting Stock (except as otherwise provided or contemplated by this Agreement);
(iv) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any third party with respect to the voting of such Voting Stock;
(v) except as permitted by clause (i) of this Section 5.03(a), join a 13D Group (other than a group comprising solely of Investor and its Affiliates (other than any Independent Holder)) for the purpose of acquiring, holding, voting or disposing of Voting Stock if such 13D Group would thereby beneficially own more than 10% of the Total Common Stock;
(vi) except at the request of the Company or pursuant to a Competing Bid, take any action that is reasonably likely to require the Company to make a public announcement regarding the possibility of a business combination or merger involving the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Companydivisions;
(iivii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors Board or the policies of the Company Company, unless such action is taken pursuant to, or in accordance with the terms of, the Distribution Agreement or Platform Agreement;
(viii) publicly disclose any intention, plan or arrangement inconsistent with the foregoing;
(ix) advise, assist or knowingly encourage any other Persons in connection with any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveforegoing; or
(vx) enter into any discussions publicly request that the Company (or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall notits respective directors, and shall not permit any directorofficers, officer Affiliates, employees or Affiliate of the Buyer to, during the Standstill Periodagents), directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l5.03(a). Notwithstanding anything to the contrary in this Agreement, (A) the prohibitions in this Section 5.03(a) shall not affect Investor’s ability to hold the Shares, the Warrants or the Warrant Shares or to exercise its rights under the Warrants; (including B) the prohibitions in this sentenceSection 5.03(a) shall not prevent Investor from making an offer to the Board to acquire all of the outstanding shares of capital stock of the Company or proposing to the Company any other strategic transaction, so long as such offer or proposal is not publicly disclosed; (C) the prohibitions in this Section 5.03(a) shall not apply to any employee pension benefit plan or similar plan of Investor or of any Affiliate of Investor that invests in the Company; (D) in the event that it shall be publicly announced or disclosed that the Company has (1) entered into a Change of Control of the Company transaction or an agreement for a Change of Control of the Company or (2) received an unsolicited offer (determined to be bona fide by the Board in good faith) for a majority of the outstanding shares of capital stock of the Company, or for the sale of the Company or substantially all of its assets at any time, Investor shall be released from compliance with the terms of this Section 5.03(a) with respect to such transaction, offer or process; and (E) this Section 5.03(a) shall not prevent Investor from tendering shares in connection with a third-party tender offer or participating in any sale approved by the Board. For clarity, neither Investor, nor any Investor Controlled Entity, Parent Entity, Affiliate of Investor or 13D Group of which Investor or any of its Affiliates is a member will discuss, encourage, facilitate or otherwise cooperate with an Independent Holder in connection with any action if undertaken by the Investor, Investor Controlled Entity, Parent Entity, Affiliate of Investor or 13D Group of which Investor or any of its Affiliates is a member would violate Section 5.03(a).
(b) In the event the Company becomes aware that Investor (together with any Investor Controlled Entity, Parent Entity, Affiliate of Investor (other than any Independent Holder) or 13D Group of which Investor or any of its Affiliates (other than any Independent Holder) is a member) exceeds the ownership limitations under Section 5.03(a)(iv), the Company will promptly provide written notice to Investor. Following delivery of such notice, at the option of the Company, Investor must either (i) sell shares of Common Stock to the Company, as soon as reasonably practicable after it receives notice thereof from the Company, at the closing price of the Common Stock on the NYSE on the day prior to the date on which Investor receives such notice, or (ii) sell such shares to a third party as soon as reasonably practicable after receiving such notice and on such date or dates as decided after consultation with the Company, in each case to cause Investor’s holdings (together with the holdings of any Investor Controlled Entity, Parent Entity, Affiliate of Investor (other than any Independent Holder) or 13D Group of which Investor or any of its Affiliates (other than any Independent Holder) is a member) not to exceed such ownership limitations.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Sap Se), Securities Purchase Agreement (Castlight Health, Inc.)
Standstill. The Buyer hereby agrees thatDuring the Standstill Period, during the period commencing Investors and their Affiliated Transferees shall not directly or indirectly, nor shall the Investors or their Affiliated Transferees authorize or direct any of their respective representatives (excluding directors who represent any Investor on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited Board acting in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate their capacity as members of the Buyer Board) to, in any mannereach case unless specifically authorized to do so or consented to in writing in advance by the Board:
a) acquire or agree, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a directoroffer, officer or Affiliate of the Buyer):
(i) effect or seek, offer seek or propose (whether publicly or otherwise) to effectacquire, or announce any intention cause to effect or cause or participate in or in any way assistbe acquired, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition beneficial ownership of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) voting stock of the Company or any options, warrants or other rights (including, without limitation, any convertible or exchangeable securities) to acquire any voting stock of the Subsidiaries or Company Controlled Affiliates ifCompany, after giving effect except pursuant to any such acquisitionthe Investors' Rights Agreement, the Buyer and/or Voting Agreement or upon the exercise of any Buyer Controlled Entity and/or Control Group Memberoptions, either individually warrants or other rights (including, without limitation, any convertible or exchangeable securities) held by the Investors;
b) make, or in the aggregateany way participate in, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) any "solicitation" of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the SEC) with respect to the voting of any securities of the Company; provided, however, that the limitation contained in this clause (b) shall not restrict the Investors from communicating their views on any transaction proposed by the Company to the stockholders of the Company;
c) deposit any securities of the Company held by such Investor in a voting trust or consents subject any such securities to vote any arrangement or agreement with any person;
d) form, join, or in any way become a member of a Group (involving parties or entities other than Asia Pacific and/or Vertex, with the understanding that Vertex and any of its affiliates may not form a Group that includes Asia Pacific or any of Asia Pacific's affiliates and that Asia Pacific and any of its affiliates may not form a Group that includes Vertex or any of Vertex's affiliates) with respect to any voting securities of the Company;
(iie) formseek to propose or propose, join whether alone or in concert with others, any way participate in tender offer, exchange offer, merger, business combination, restructuring, liquidation, recapitalization or similar transaction involving the Company;
f) nominate any person as a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities director of the Company who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the stockholders of the Subsidiaries Company, except for nominations of the representatives of the Preferred Stock on the Board contemplated by the Voting Agreement and/or the Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of the Company (the "Certificate of Amendment") to become effective on or Company Controlled Affiliatesabout the Effective Date;
(iiig) otherwise actseek, either alone or in concert with others, to seek elect a majority of the directors of the Board in order to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivh) take any action which would or would reasonably be expected to force sell securities of the Company to make a public announcement regarding any person (other than an Affiliated Transferee) that is known (without any duty of investigation) by the selling party to be seeking control of the types Company; provided that this clause shall not apply if Hong Chen or ▇▇▇▇ Ya-▇▇▇ ▇▇▇ has sold, or has entered into any agreement to sell his or her shares of matters set forth in clause (Common Stock to such party seeking control of the Company;
i) abovesell securities of the Company constituting more than twenty percent (20%) of the Total Voting Power at a price that is more than ten percent (10%) above the then current trading price of the Common Stock as most recently reported in the Wall Street Journal ("Current Price"); provided that this clause shall not apply if Hong Chen or ▇▇▇▇ Ya-▇▇▇ ▇▇▇ has sold, or has entered into any agreement to sell, a majority of his or her shares of Common Stock at a price that is more than ten percent (10%) above the Current Price; or
(vj) enter into publicly announce or disclose any discussions intention, plan or arrangements arrangement inconsistent with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)foregoing restrictions.
Appears in 2 contracts
Sources: Series a Preferred Stock and Warrant Purchase Agreement (Gric Communications Inc), Stockholder Agreement (Gric Communications Inc)
Standstill. The Buyer hereby (a) Each Crescendo Party agrees that, that during the period commencing on the Closing Date date hereof and ending on the second annual anniversary thereof (Termination Date, without the “Standstill Period”)prior written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, unless specifically invited in writing by the Company, the Buyer it will not, and will cause each of its Affiliates, Associates, officers, agents and other Persons acting on its behalf not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer)::
(i) effect or seekacquire, offer or propose (whether publicly or otherwise) to effectacquire, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options agree to acquire any securities (except by way of stock dividends or beneficial ownership thereofother distributions or offerings made available to holders of Voting Securities (as such term is defined in Section 10) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifgenerally on a pro rata basis, after giving effect to provided that any such acquisitionsecurities so received will be subject to the provisions hereof), the Buyer and/or any Buyer Controlled Entity and/or Control Group Memberdirectly or indirectly, either individually or in the aggregatewhether by purchase, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving through the Company or any acquisition of the Subsidiaries or Company Controlled Affiliates or any division or line control of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” another Person (as such terms are used term is defined in the proxy rules of the SEC) Section 10), by joining a partnership, limited partnership, syndicate or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a other “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or otherwise, any Voting Securities, or otherwise become the economic owner (as such term is defined in Section 10) of any such securities, if after giving effect to such acquisition it (by itself or together with any other Crescendo Party, its respective Affiliates and Associates and any other Person with whom it, such other Crescendo Party or any such Affiliate or Associate has any agreement, understanding or arrangement with respect to Voting Securities) would be the beneficial owner or economic owner of more than 15% of the Company’s outstanding Voting Securities. For the purposes of this Section 3(a)(i), any Voting Securities, including options to acquire Voting Securities, that have been or are hereafter issued or granted to ▇▇. ▇▇▇▇▇▇ in his capacity as a director, or any other Voting Securities otherwise acquired by ▇▇. ▇▇▇▇▇▇ in his individual capacity, shall not be deemed to be Voting Securities held, beneficially owned or controlled by Crescendo or any other Crescendo Party. For the purposes of computing the beneficial ownership at the time of any purchase, the number of outstanding Voting Securities will be determined by the latest available Company filing with the Securities and Exchange Commission (the “SEC”);
(ii) engage, or in any way participate, directly or indirectly, in any “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) of proxies or consents (whether or not relating to the election or removal of directors), seek to advise, encourage or influence any Person with respect to the securities voting of any Voting Securities; initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) shareholders of the Company for the approval of shareholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such shareholder proposal; or otherwise communicate or seek to communicate with the Company’s shareholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; provided, however, that nothing herein will limit the ability of any Crescendo Party, or its respective Affiliates and Associates, except as otherwise provided in Section 1(b)(ii), to vote its Voting Securities on any matter submitted to a vote of the stockholders of the Company or announce its opposition to any Board-approved proposals not supported by Messrs. Ajdler or ▇▇▇▇▇▇▇ or limit the ability of the Subsidiaries or Company Controlled AffiliatesCrescendo Directors to exercise their rights as members of the Board while serving as members of the Board;
(iii) otherwise actform, alone join or in concert any way participate in any “group” (within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with othersrespect to any Voting Securities, to seek to control other than a “group” that includes all or influence the management, the board of directors or the policies some lesser number of the Company or Crescendo Parties, but does not include any of the Subsidiaries or Company Controlled Affiliatesother members who are not currently identified as a Crescendo Party;
(iv) take deposit any action which would Voting Securities in any voting trust or would reasonably subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities, except as expressly set forth in this Agreement;
(v) seek to have called, or cause to be expected called, any meeting of shareholders of the Company;
(vi) make any public demand to force inspect the Company books and records of the Company, including pursuant to any statutory right that Crescendo may have;
(vii) have any discussions or communications, or enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make a public announcement any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(viii) make any proposal (including to publicly disclose or discuss any proposal) or enter into any discussion regarding any of the types foregoing, or make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or publicly disclose any request to amend, waive or terminate any provision of matters this Agreement; provided, however, that nothing herein will limit the ability of any Crescendo Party, or its respective Affiliates and Associates, except as otherwise provided in Section 1(b)(ii), to vote its Voting Securities on any matter submitted to a vote of the stockholders of the Company or announce its opposition to any Board-approved proposals not supported by Messrs. Ajdler or ▇▇▇▇▇▇▇ or limit the ability of the Crescendo Directors to exercise their rights as members of the Board while serving as members of the Board; and provided, further, that notwithstanding anything in this Section 3(a) to the contrary, if, at any time a third party (A) commences a tender offer for at least 50% of the outstanding capital stock of the Company or (B) enters into an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least 50% of the outstanding capital stock of the Company or all or substantially all of its assets, then the restrictions on Crescendo set forth in clause Sections 3(a)(ii), 3(a)(iii) and 3(a)(vi) with respect to solicitations of proxies shall terminate and cease to be of any further force or effect, such that Crescendo may (i) abovesolicit proxies with respect to any shareholder vote required in connection with any transactions of the nature contemplated in subparts (A) and (B) of this proviso, and (ii) take any actions in connection with any such solicitation of proxies, including requesting a stockholder list and related information, filing an amendment or amendments to its Schedule 13D regarding the Common Stock of the Company as required by law or taking any other action related to the solicitation of proxies or making any public filings or announcements in furtherance thereof; or
(vix) enter into take or cause or induce others to take any discussions or arrangements action inconsistent with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of .
(b) Each Crescendo Party will be released from its standstill obligations set forth in Section 3(a) on the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Termination Date.
Appears in 2 contracts
Sources: Settlement Agreement (O Charleys Inc), Settlement Agreement (O Charleys Inc)
Standstill. The Buyer hereby agrees that, during For the period commencing on the Closing Date date hereof and ending on the second annual earlier of (i) the two year anniversary thereof of the date hereof and (ii) such time as the Purchaser beneficially owns less than 5,555,555 Common Shares (as adjusted for stock splits, stock dividends, subdivisions and combinations of Common Shares and for purposes of this clause (ii) including any Warrant Shares underlying any unexercised portion of the Warrant then held by the Purchaser or any of its Affiliates) (the earlier of (i) or (ii), the “Standstill Restricted Period”), unless specifically invited in writing by neither the CompanyPurchaser, the Buyer nor any of its Affiliates or any BSL Affiliate (each, a “Restricted Person”) will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or prior written consent of a director, officer or Affiliate majority of the Buyer):Company’s directors who are independent under the rules of the Trading Market and who are not Purchaser Nominees:
(ia) effect other than the acquisition of the Shares by the Purchaser pursuant to this Agreement, the issuance of the Warrant in accordance with the Transaction Documents, the acquisition of the Warrant Shares upon the exercise of the Warrant or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any the acquisition of any securities (Common Shares issued by the Company pursuant to Section 1.3(c) of the Stock Appreciation Right, acquire, offer to acquire, or beneficial ownership thereof) agree to acquire, directly or indirectly, by purchase or otherwise, any Equity Securities or direct or indirect rights or options to acquire any securities (of any Subsidiary, or beneficial ownership thereof) of any successor to the Company, or any assets of the Company or of its divisions or of any such successor such that in any event the Purchaser’s beneficial ownership of the Subsidiaries or Company Controlled Affiliates ifCommon Shares on a fully diluted basis, after giving effect to any such acquisitionthe conversion or exercise of all outstanding rights, options and warrants for Common Shares (which calculation shall include the Shares acquired by the Purchaser pursuant to this Agreement and either (A) in the event Company Shareholder Approval is obtained, the Buyer and/or any Buyer Controlled Entity and/or Control Group MemberWarrant Shares issuable upon the exercise of the Warrant, either individually or (B) in the aggregateevent the Company Shareholder Approval is not obtained, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%the Purchaser subsequently elects to acquire any Common Shares pursuant to Section 1.3(c) of the shares Stock Appreciation Right, such number of Common Stock then outstandingShares to be issued in connection therewith), would result in a “change of control” as defined in the Loan Documents (Bas amended) or as defined in any tender or exchange offer, merger or other business combination involving successor definitive documentation that is entered into by the Company or in connection with any refinancing of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, Loan Documents;
(Cb) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofmake, or (D) in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) ), or consents advise or seek to vote influence any Person with respect to the voting of any voting securities of the CompanyCompany or any of its Subsidiaries;
(iic) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization, reorganization or business combination or other similar extraordinary transaction involving the Company or any of its Subsidiaries or any of their securities or assets, on the one hand, and the Purchaser, any of its Affiliates or any BSL Affiliate, on the other hand;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) Group in connection with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliatesforegoing;
(iiie) otherwise act, alone or in concert with othersothers (including by providing financing to another party), to seek or offer to control or influence the management, the board Board of directors Directors, policies or the policies affairs of the Company Company;
(f) advise, assist or encourage any other Person in connection with any of the Subsidiaries or Company Controlled Affiliates;foregoing; or
(ivg) take any action which would publicly request (or would otherwise request in a manner that could reasonably be expected to force require public disclosure by the Company to make a public announcement regarding any of Company) that the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill PeriodCompany, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l6.6. Notwithstanding anything to the contrary herein but subject to Section 6.8, during the Restricted Period (i) nothing in Sections 6.6(e) and (f) will prohibit or restrict (A) the performance by any Purchaser Nominee of any actions required in their capacity as a director of the Company (or as Chairman of the Board of Directors, as the case may be) or (B) the exercise of Purchaser’s rights under Sections 4.1 and 4.2 of this Agreement and (ii) in the event that a third party (other than the Purchaser, any of its Affiliates or any BSL Affiliate) makes a proposal to acquire 100% of the Equity Securities of the Company, or all or substantially all of the assets of the Company (a “Proposal”), and the Board of Directors resolves not to pursue any discussions, negotiations or the entry into definitive documentation in connection with the Proposal and the Purchaser supports such discussions, negotiations or entry into definitive documentation, the provisions set forth in Section 6.6(d), (e), (f) and (g) will not apply to the Proposal, including this sentence)as it may be amended or modified.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lebow Bennett S), Securities Purchase Agreement (Borders Group Inc)
Standstill. The Buyer hereby agrees that(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives acting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with respect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not own more than 5% during the period commencing on tenure of this Agreement. The Potential Relationship Party agrees that during the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, neither the Buyer will not, and will not permit Potential Relationship Party nor any director, officer or Affiliate of the Buyer toPotential Relationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the Potential Relationship Party will in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, : (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent Affiliates; (9.99%) of the shares of Common Stock then outstanding, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or Company Controlled Affiliates or any division assets of the Company or line its subsidiaries or its Affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or Affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofAffiliates,
(ii) make, or in any way participate in, directly or indirectly, (Di) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) to vote, or consents seek to vote advise or influence any person or entity with respect to the voting of any voting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and records of the Company;
(iiiii) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliatesany such securities;
(iiiiv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(vvi) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not.
(b) Notwithstanding the foregoing, and shall not permit the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any director, officer or Affiliate of the Buyer toPotential Relationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time to time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction that would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not state an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that could not reasonably be expected to cause the Company to need to make public disclosure thereof.
(c) The Potential Relationship Party also agrees during the Standstill PeriodPeriod not to request that the Company or any of its Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this ARTICLE I Section 4(l10.
(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the Potential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by any third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business of, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the nature of such transaction and the parties involved.
(including this sentence)e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as set forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated in the current Section 10 of the Agreement.
(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.
Appears in 2 contracts
Sources: Mutual Non Disclosure Agreement, Mutual Non Disclosure Agreement (Thea Acquisition Corp.)
Standstill. (a) The Buyer hereby Purchaser agrees that, during that after Closing and until such time as the period commencing Purchaser would no longer be required to file a report on Schedule 13D or 13G (assuming for purposes of this Section 18 that the Closing Date Notes have been converted in full and ending on the second annual anniversary thereof (Purchaser owns an amount of Common Stock such that the Purchaser would not be deemed an “Standstill Period”Acquiring Person” under the Rights Agreement), unless the Purchaser shall have been specifically invited authorized in writing by the Company or a committee of the Board of Directors of the Company, neither the Buyer will notPurchaser nor any of its Affiliates will, and Purchaser and Affiliates will direct their representatives, agents, directors, officers and employees not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly, (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer offer, or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or of beneficial ownership thereof) of the Company or any of its subsidiaries (except as contemplated by the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent Transaction Documents); (9.99%) of the shares of Common Stock then outstanding, (Bii) any tender or exchange offer, merger merger, or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, its subsidiaries; (Ciii) any recapitalization, restructuring, liquidation, liquidation or dissolution or other extraordinary transaction with respect to of the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, its subsidiaries; or (Div) any “solicitation” solicitation of “proxies” (as such terms are used in the proxy rules of the SEC) proxies or consents to vote any voting securities of the Company;
; (iib) form, join or in any way participate in a “group” (within as defined in the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
Exchange Act); (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(ivc) take any action which would or would reasonably be expected to might force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (vd) enter into any discussions or arrangements with any third party with respect to any of the foregoing. .
(b) The Buyer further agrees parties acknowledge and agree that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision Company’s remedies at law for a breach of this Section 4(l) (including 18 would be inadequate and that irreparable damage will result to the Company from any violation of this sentence)Section 18 by the Purchaser. The parties expressly agree that the Company shall have the remedy of a restraining order and injunction and any such equitable relief as may be declared or issued to enforce the provisions of this Section 18.
Appears in 2 contracts
Sources: Purchase Agreement (Covad Communications Group Inc), Purchase Agreement (Earthlink Inc)
Standstill. The Buyer hereby Investor agrees thatthat until the three (3) year anniversary of the Step 2 Closing Date, during without the period commencing on prior written approval of the Closing Date and ending on Company, neither the second annual anniversary thereof Investor nor any of its controlled Affiliates will, directly or indirectly:
(the “Standstill Period”)a) in any way acquire, unless specifically invited in writing offer or propose to acquire or agree to acquire, Beneficial Ownership of any Common Stock or other securities issued by the Company, the Buyer will not, and will not permit or any director, officer securities convertible into or Affiliate exchangeable for Common Stock or any other equity securities of the Buyer toCompany if such acquisition would result in the Investor and its Affiliates having Beneficial Ownership of more than 23.0% of the outstanding shares of Common Stock of the Company (counting as shares owned by the Investor any Conversion Shares), other than solely as a result of the exercise of the Additional Financing Right or any other rights, entitlements or obligations set forth in any mannerthis Agreement, the certificate of incorporation of the Company or the Certificate of Designations; provided, however, that the Investor or its controlled Affiliates will, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a directorindirectly, officer or Affiliate of the Buyer):
(i) effect or seekbe entitled to acquire, offer or propose to acquire or agree to acquire in any trading market on which securities issued by the Company or any of the Subsidiaries are listed or quoted, Beneficial Ownership of any Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock or any other equity securities of the Company (i) at any time, so long as such acquisition would not result in the Investor’s having Beneficial Ownership of Common Stock of the Company representing more than 24.9% of the outstanding shares of Common Stock (calculated on a fully diluted basis) at the time of acquisition or (ii) at any time, so long as any resulting increase in the Beneficial Ownership of the Investor and its Affiliates (as a percentage of the outstanding fully-diluted Common Stock) is less than or equal to a prior reduction in such Beneficial Ownership resulting from the issuance by the Company of shares of Common Stock (or securities convertible into or exchangeable therefore) pursuant to any employee benefit plan or other equity-based awards to employees or directors; provided, further, that the Investor and its Affiliates shall not be entitled to exercise its rights under clause (ii) of the preceding proviso at any time after the Company shall have made a bona fide proposal that entitled the Investor to exercise its Additional Financing Right and the Investor shall have declined to do so.
(b) enter into or agree, offer, propose or seek (whether publicly or otherwise) to effectenter into, or announce any intention to effect or cause or participate otherwise be involved in or in any way assistpart of, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (transaction, merger or beneficial ownership thereof) other business combination relating to all or rights or options to acquire any securities (or beneficial ownership thereof) part of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually acquisition transaction for all or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) part of the shares assets of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company Subsidiary or any of the Subsidiaries or Company Controlled Affiliates or any division thereoftheir respective businesses;
(c) make, or (D) in any way participate in, any “solicitation” of “proxies” (as such terms are used in defined under Regulation 14A under the proxy rules Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) to vote, or seek to advise or influence any person or entity with respect to the SEC) or consents to vote voting of, any voting securities of the CompanyCompany or any Subsidiary;
(iid) call or seek to call a meeting of the stockholders of the Company or any of the Subsidiaries or initiate any stockholder proposal for action by stockholders of the Company or any of the Subsidiaries, form, join or in 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 the securities of the Company any Voting Securities, or any of the Subsidiaries seek, propose or Company Controlled Affiliates;
(iii) otherwise act, act alone or in concert with others, to seek to influence or control or influence the management, the board Board of directors Directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveSubsidiaries; or
(ve) enter into bring any discussions action or arrangements with any third party with respect otherwise act to any contest the validity of this Section 7.04 or seek a release of the foregoing. The Buyer further agrees that it shall notrestrictions contained herein, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly make a request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l7.04; provided that nothing in this Section 7.04 shall prevent the Investor or any of its Affiliates from voting any Voting Securities then Beneficially Owned by the Investor or its Affiliates in any manner except that the Investor agrees to vote in favor of the slate of directors recommended by the Board of Directors at each meeting of the Company’s stockholders for the election of such directors; provided, further, that nothing in clause (b), (c) or (including d) of this sentence)Section 7.04 shall apply to the Investor’s Board Representatives solely in their capacity as directors of the Company.
(f) For purposes of this Agreement, a person shall be deemed to “Beneficially Own” any securities of which such person is considered to be a “Beneficial Owner” under Rule 13d-3 under the Exchange Act, provided that no Person shall be deemed to Beneficially Own any securities it holds (or over which it has investment discretion) in a fiduciary capacity for Clients. For purposes of this Agreement, “Voting Securities” shall mean at any time shares of any class of capital stock of the Company that are then entitled to vote generally in the election of directors.
Appears in 2 contracts
Sources: Investment and Contribution Agreement (Virtus Investment Partners, Inc.), Investment and Contribution Agreement (Phoenix Companies Inc/De)
Standstill. The Buyer hereby agrees As of the date hereof, neither you nor any of your affiliates or Representatives acting on your behalf or on behalf of any person acting in concert with you, or any person with whom any of the foregoing are acting in concert (and in concert with you) with respect to the Company or its securities, owns any securities of the Company. You agree that, during the for a period commencing on the Closing Date and ending on the second annual anniversary thereof March 1, 2012 (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer neither you nor any of your affiliates or Representatives acting on your behalf or on behalf of other persons acting in concert with you will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or affiliates or assets of the Company Controlled Affiliates or any division the subsidiaries or line affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
Company or any of its affiliates; (iib) form, join or in any way participate in a “group” (within as defined in Section 13(d) under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries or Company Controlled Affiliates;
Company; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
(ve) enter into any discussions or arrangements with any third party with respect to any of matters set forth in (a) through (d) above. Notwithstanding the foregoing. The Buyer further agrees that it shall notrestrictions contained in this section 7, and shall not permit any director, officer you or Affiliate your affiliates or Representatives may acquire shares of the Buyer toCompany’s common stock, par value $0.10 per share (the “Common Stock”) representing, in the aggregate, up to 1% of the outstanding shares of the Common Stock, provided that such acquisitions do not and would not require public or other disclosure and are not publicly announced or disclosed. You also agree during such period not to request that the Standstill PeriodCompany or any of its Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). You further agree that, if at any time during such period, you or (to your knowledge) any of your affiliates or Representatives are approached by any third party seeking to co-invest or partner with you in a Possible Transaction, you will (unless prohibited by law or contract) promptly inform the Company of the nature of such transaction and the parties involved.
Appears in 2 contracts
Sources: Confidentiality Agreement (Danaher Corp /De/), Confidentiality Agreement (Beckman Coulter Inc)
Standstill. The Buyer hereby (a) Each Venture Owner Parent agrees that, during that so long as it or one of its Affiliates continues to hold an ownership interest in any of the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)Venture Entities, unless it shall have been specifically invited in writing by the Companyother Venture Owner Parent, the Buyer neither it nor any of its Affiliates will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
indirectly: (i) effect or seekacquire, offer to acquire (including from the stockholders of the other Venture Owner Parent), agree to acquire or propose make a proposal to acquire (whether publicly including from the stockholders of the other Venture Owner Parent), by purchase or otherwise) to effect, any securities, or announce direct or indirect rights to acquire any intention to effect securities, of the other Venture Owner Parent or cause any subsidiary of the other Venture Owner Parent or participate any successor to, or Person in control of, the other Venture Owner Parent, or any assets or property of the other Venture Owner Parent or any subsidiary or division of the other Venture Owner Parent or of any such successor or controlling Person; (ii) make or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote, or consents seek to vote advise or influence any Person with respect to voting of, any voting securities of the Company;
other Venture Owner Parent or any of its subsidiaries; (iiiii) make any public announcement or statement with respect to, or solicit or submit a proposal for, or offer of (with or without conditions) any merger, business combination, recapitalization, reorganization, purchase of a material portion of the assets or properties of the other Venture Owner Parent or its subsidiaries or other similar extraordinary transaction involving the other Venture Owner Parent, its subsidiaries or any of their respective securities; (iv) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the any securities of the Company other Venture Owner Parent or any of its subsidiaries or otherwise in connection with any of the Subsidiaries or Company Controlled Affiliates;
foregoing; (iiiv) otherwise act, alone or in concert with others, others to seek to control or influence the management, the board of directors or the policies of the Company other Venture Owner Parent or any of the Subsidiaries or Company Controlled Affiliates;
its subsidiaries; (ivvi) take any action which would challenging the validity or would enforceability of this Section 7.17, or disclose any intention, plan or arrangement inconsistent with any of the foregoing; (vii) advise, assist, encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing; (viii) take any action that could reasonably be expected to force require the Company other Venture Owner Parent to make a public announcement or statement regarding the possibility of any of the types of matters set forth events described in clause this paragraph; or (iix) above; or
(v) enter into any discussions request the other Venture Owner Parent or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer representatives or Affiliate agents of the Buyer to, during the Standstill Periodother Venture Owner Parent, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l7.17; provided, that none of the foregoing shall prohibit either Venture Owner Parent from making confidential proposals to the board of directors or chief executive officer of the other Venture Owner Parent; provided, further, that (1) any such proposals shall be made in a manner that shall not require the public disclosure of such proposals by any Person and (2) any such proposals shall not be publicly disclosed by such Venture Owner Parent making such proposals.
(b) Notwithstanding anything in this Agreement to the contrary, the restrictions contained in Section 7.17(a) shall cease to apply to a Venture Owner Parent from and after the first occurrence of any of the following: (i) the execution of a definitive agreement by the other Venture Owner Parent regarding a transaction that, if consummated, would constitute or lead to a Change of Control Event with respect to such other Venture Owner Parent; (ii) the public announcement by the other Venture Owner Parent of its intention to enter into a definitive agreement with a third party regarding a transaction that, if consummated, would constitute or lead to a Change of Control Event with respect to such other Venture Owner Parent; (iii) the Venture Owner Parent’s receipt of a Change of Control Notice from the other Venture Owner Parent in accordance with Section 11.1(a); (iv) the public announcement by a third party of (1) a bona fide proposal to effect a Change of Control Event with respect to the other Venture Owner Parent, or (2) its intent to commence a tender or exchange offer that, if consummated, would constitute such a Change of Control Event, or to commence a “solicitation” of “proxies” with respect to voting securities of the other Venture Owner Parent that, if successful, would constitute or lead to a Change of Control Event; (v) the sale or transfer by the Venture Owner Parent of all of its interests in the Venture to a third party (including the other Venture Owner Parent and/or its Affiliates); or (vi) the dissolution of the Venture.
(c) Notwithstanding anything in this sentenceAgreement to the contrary, if a Venture Owner Parent shall make a bona fide confidential written proposal to the other Venture Owner Parent as contemplated by the first proviso contained in Section 7.17(a), the restrictions contained in Section 7.17(a) shall be suspended and shall not apply to actions taken with respect to the other Venture Owner Parent during the 12-month period commencing on the date that is 12 months following the date on which the first Venture Owner Parent delivered such confidential proposal to the other Venture Owner Parent, which period shall be extended if actions that would be restricted by Section 7.17(a) are publicly continuing at the end of such 12-month period until the acquisition attempt being pursued is either completed or abandoned.
(d) Each Venture Owner Parent agrees that so long as the obligations under the foregoing provisions of this Section 7.17 apply to it, it will not enter into any agreement that would prohibit or restrict discussions with the other Venture Owner Parent regarding a Change of Control Event or the entering into a definitive agreement regarding a transaction that, if consummated, would constitute or lead to a Change of Control Event (other than any such restrictions or prohibitions contained in a definitive agreement regarding a transaction that, if consummated, would constitute or lead to a Change of Control Event).
Appears in 2 contracts
Sources: Master Formation Agreement (Cameron International Corp), Master Formation Agreement (Cameron International Corp)
Standstill. The Buyer hereby agrees that, during (a) During the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will Investor shall not, and will shall cause its Affiliates and Representatives acting on its and/or its Affiliates’ behalf not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing through any other Person that is not the Buyer or arrangements with a director, officer or Affiliate of the Buyerthird party):
(i) effect except for Equity Securities received by way of subdivision, distribution in specie, share splits, share dividends, reclassifications, recapitalizations or seekother distributions by the Company in respect of its Ordinary Shares, (A) acquire, agree to acquire, propose or offer to acquire (including through the acquisition of Beneficial Ownership) (directly or propose (whether publicly indirectly, by purchase or otherwise) any Equity Securities (other than the Conversion Shares); or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to effectacquire (directly or indirectly, by purchase or announce otherwise) any intention to effect or cause or participate in Equity Securities;
(ii) make, or in any way assistparticipate, facilitate directly or encourage any other Person to effect or seekindirectly, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies,” “consents” or “authorizations” to vote (as such terms are used in the proxy rules of the SEC), or seek to advise or influence any Person with respect to the voting of any shares of Voting Securities (other than in each case (x) or consents to vote any voting securities the Investor and its Affiliates, (y) in accordance with and consistent with the recommendation of the CompanyBoard or (z) with respect to the election of the Investor Nominee);
(iiiii) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to Exchange Act, for the securities purpose of voting, acquiring, holding, or disposing of, any Voting Securities, other than a group consisting solely of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Investor and its Affiliates;
(iv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose to effect or participate in, with or without conditions, any acquisition of, or merger, amalgamation, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any Subsidiary thereof or any of its or their respective securities or assets (each, an “Extraordinary Transaction) or make any public announcement with respect to such Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Investor of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of the Notes to the extent required to effect such tender) or the vote by the Investor of any Voting Securities of the Company with respect to any Extraordinary Transaction in accordance with the recommendation of the Board;
(v) request that the Company or any of its Subsidiaries, directly or indirectly, amend or waive any provision of this Section 4;
(vi) contest the validity or enforceability of any provision contained in this Section 4;
(vii) call, or seek to call, a general meeting of the shareholders of the Company or initiate any shareholder proposal, or initiate or propose any action by written consent, in each case, for action by the shareholders of the Company;
(viii) nominate candidates for election to the Board or otherwise seek representation on the Board (except as expressly set forth in this Agreement) or seek the removal of any member of the Board (except for the Investor Nominee, if applicable); or
(ix) take any action which would or that would reasonably be expected to force require the Company to make a public announcement regarding the possibility of a transaction or any other matter described in this Section 4.
(b) Nothing in this Section 4 shall, in and of itself, prohibit or restrict the voting (in such Person’s capacity as a Director) or other actions taken by the Investor Director in his or her capacity as a member of the types of matters set forth Board and in clause (i) above; or
(v) enter into any discussions compliance with and subject to his or arrangements with any third party with respect to any her fiduciary duties as a member of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Board.
Appears in 2 contracts
Sources: Investor Rights Agreement (Norwegian Cruise Line Holdings Ltd.), Investment Agreement (Norwegian Cruise Line Holdings Ltd.)
Standstill. The Buyer hereby Lamb agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer that he will not, and he will cause his immediate family not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control directly or influence indirectly, during the managementTerm, the board of directors or the policies of the Company or do any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth things listed in clause clauses (i) above; or
through (vvii) enter into any discussions or arrangements with any third party with respect below. Each Lamb Affiliate who has executed and delivered to any HUB a copy of the foregoing. The Buyer further this Agreement agrees that he, she or it shall will not, and shall will cause his or her spouse (if any) not permit any director, officer or Affiliate of the Buyer to, during and will urge the Standstill Periodrest of his or her immediate family (if any) not to, alone or in concert with others, directly or indirectly, publicly request during the Company Term, do any of the things listed in clauses (i) through (vii) below:
(i) beneficially own any voting securities of HUB,
(ii) propose to HUB or any other person any transaction between any person or entity with whom Lamb is affiliated, whether directly or indirectly, as shareholder, employee, director, officer, principal or agent, or in any other capacity, and HUB and/or its security holders or involving any of its securities or security holders,
(iii) assist, advise or encourage any other persons in acquiring, directly or indirectly, control of HUB or any of HUB's securities, businesses or assets,
(iv) solicit proxies or initiate, propose or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to any matter which has been recommended by the majority of members of the Board of Directors of HUB or in favor of any matter which has not been approved by a majority of the Directors of HUB,
(v) act to seek to affect or influence the control of the management or Board of Directors of HUB or its directorsbusiness operations or affairs, officersor make any public statements with respect thereto,
(vi) act for the purpose of acquiring, employees holding, voting or agentsdisposing of voting securities of the Company, or otherwise become a "person" or a member of a "group" within the meaning of Section 13(d) of the Securities Exchange Act of 1934, or
(vii) aid or abet or otherwise induce any person to amend or waive take any provision of the actions enumerated in (i) through (vi) of this Section 4(lArticle III. Lamb agrees that he will, and he will cause his immediate family to, vote all shares held of record as of the record date for HUB's 2000 Annual Meeting in accordance with the recommendations of HUB management. Each Lamb Affiliate who has executed and delivered to HUB a copy of this Agreement agrees that he, she or it will, will cause his or her spouse (if any) to, and will urge the rest of his or her immediate family (including this sentence)if any) to, vote all shares held of record as of the record date for HUB's 2000 Annual Meeting in accordance with the recommendations of HUB management.
Appears in 2 contracts
Sources: Resignation Agreement (Hudson United Bancorp), Resignation Agreement (Hudson United Bancorp)
Standstill. The Buyer hereby agrees that, during During the period commencing beginning on the Closing Date date hereof and ending at 11:59 pm Pacific Time on the second annual anniversary thereof November 11, 2020 (the “Standstill PeriodTermination Date”), unless specifically invited in writing by neither the Company, the Buyer will not, and will not permit Purchaser nor any director, officer or Affiliate of the Buyer to, in any mannerits Affiliates (as defined below) shall, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or prior written consent of a director, officer or Affiliate majority of the Buyer):members of the Board of Directors of the Company (the “Board”) who are not affiliated with the Purchaser:
(i) a. effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way advise, assist, knowingly facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or participate cause:
i. any acquisition, or obtaining any economic interest in, (A) any acquisition of right to direct the voting or disposition of, or any other right with respect to, any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of its subsidiaries (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities or any obligations measured by the Subsidiaries price or value of any securities of the Company Controlled Affiliates ifor any of its subsidiaries, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after giving effect the passage of time or upon the satisfaction of one or more conditions pursuant to any such acquisitionagreement, arrangement or understanding, without the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) prior consent of the shares of Common Stock then outstanding, (B) Board;
ii. any tender or exchange offer, merger or other merger, consolidation, business combination involving or acquisition or disposition of assets of the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) its subsidiaries;
iii. any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) its subsidiaries; or
iv. any “solicitation” of “proxies” (as such terms are used in the proxy rules Regulation 14A of the SECSecurities Exchange Act of 1934, as amended (the “Exchange Act”)) or consents to vote any voting securities of the Company, or become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act) or propose, or solicit stockholders of the Company for the approval of, any stockholder proposals with respect to the Company or seek to advise or influence any person with respect to the voting of any voting securities of the Company;
(ii) b. form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇securities laws) with respect to the any securities of the Company or any securities convertible into Common Stock or any other voting securities of the Subsidiaries Company or Company Controlled Affiliatesotherwise act in concert with any person in respect of any such securities;
(iii) c. otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors Board or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(iv) d. take any action which would or would reasonably be expected to force result in the Company or its representatives being obligated to make a public announcement regarding any of the types of matters set forth in clause (i) above; orthis Section 1;
(v) e. enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not; or
f. publicly disclose any intention, and plan or arrangement regarding any of the matters referred to in this Section 1; provided that, the foregoing restrictions shall not permit any director, officer or Affiliate apply after (A) a public announcement by the Company of the Buyer toinitiation of any merger, during the Standstill Periodconsolidation, directly acquisition, scheme, business combination or indirectly, publicly request other extraordinary transaction in which the Company or any of its subsidiaries is a constituent corporation or party and following consummation of such transaction, either (i) substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 50% or more of the voting power of the Company would not continue to beneficially own at least 50% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity or (ii) all or a substantial part of the assets of the Company and its subsidiaries would be transferred to a third party (a “Business Combination”) or (B) the submission of any bona fide offer by any third party to acquire all or a substantial portion of the securities or assets of the Company or its subsidiaries (which for the avoidance of doubt shall exclude any offer with respect to which the Company elects not to engage in substantive negotiations), prompt notice of which shall be provided to the Purchaser; provided, further, that nothing in this Section 1 is intended to (X) restrict the Purchaser’s right to vote its shares of Common Stock purchased pursuant to the Purchase Agreement (or any prior purchase agreement entered into with the Company) or shares of Common Stock issuable upon conversion of the Series A Preferred Stock purchased pursuant to the Purchase Agreement or otherwise in its directorsdiscretion on matters brought to a vote of the stockholders of the Company, officers(Y) restrict the activities of the Purchaser or the discussions among the representatives of the Company and the Purchaser, employees in each case, as contemplated by that certain Amended and Restated Collaboration Agreement, dated the date hereof, by and among the Company and Société des Produits Nestlé S.A. (the successor to Nestec Ltd.). or agents(Z) restrict the Purchaser’s or any of its Affiliates’ right to amend acquire any rights, title or waive interest in any provision options or other securities of this Section 4(l) (including this sentence)the Company granted to members of the Board who are affiliated with the Purchaser.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Aimmune Therapeutics, Inc.), Standstill Agreement (Aimmune Therapeutics, Inc.)
Standstill. The Buyer hereby (a) Each Stockholder agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited authorized in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate a majority of the Buyer toBoard or otherwise expressly provided by this Agreement, neither such Stockholder nor any of its Affiliates will, directly or indirectly, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer)::
(i) effect purchase or seek, offer or propose otherwise acquire (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition except by reason of any securities (stock dividend, split, reverse split, combination, recapitalization, reclassification, merger, consolidation or beneficial ownership thereof) or rights or options similar event with respect to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting equity securities of the CompanyCorporation held by such Stockholder, or pursuant to any rights offering to existing holders of the capital stock of the Corporation, in each case, in which all holders of Common Stock are treated on a proportionate basis) beneficial ownership of any capital stock of the Corporation; provided, that, the restrictions in this Section 3(a) shall not apply to any (i) transaction effected pursuant to Section 2(b)(i), Section 2(b)(ii), or Section 2(b)(iv), (ii) securities offered to any Stockholder pursuant to Section 4; (iii) transaction specifically required by court order or by operation of law or (iv) exercise of New Warrants that results in the Stockholders beneficially owning (individually or as a group with other Stockholders or other Persons), in the aggregate, no more than forty nine percent (49%) of the Fully Diluted Shares Outstanding;
(ii) formknowingly take any action resulting in, join or that would reasonably be expected to result in, such Stockholder forming or taking any action in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Securities Exchange Act) with respect to the securities Common Stock, except for any such group consisting solely of the Company or Stockholder and its Affiliates on the Effective Date and/or any of such group with which the Subsidiaries or Company Controlled AffiliatesStockholder is a party on the Effective Date;
(iii) otherwise actexercise any New Warrant that would result in the Stockholders beneficially owning (individually or as a group with other Stockholders or other Persons), alone or in concert with othersthe aggregate, to seek to control or influence the management, the board of directors or the policies more than forty nine percent (49%) of the Company or any of Fully Diluted Shares Outstanding at the Subsidiaries or Company Controlled Affiliates;time; or
(iv) take publicly disclose any action which would intention, plan or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements arrangement inconsistent with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence3(a).
(b) Notwithstanding any other provisions of this Agreement, the restrictions in Section 3(a) shall automatically terminate and be of no further force and effect if and upon the first to occur of:
(i) failure of the Corporation to enter into Lock-Up Agreements for the Lock-Up Period and on substantially similar terms to Section 2 with holders of the 13% Notes (as defined in the Purchase Agreement) that receive, in the aggregate, at least seventy five (75%) of the shares of Common Stock (assuming, for the purpose of such calculation, the exercise of all New Warrants) received by all holders of 13% Notes pursuant to the Plan, and to keep in place and enforce any such Lock-Up Agreements in accordance with their terms;
(ii) a material breach by the Corporation of this Agreement and such breach remains uncured for a period of five (5) Business Days from the date that the Corporation receives a written notice of such breach from any Stockholder;
(iii) a material breach by the Buyer of any of its obligations under the Purchase Agreement; or
(iv) a default by the Buyer under the terms and conditions of the New Senior Secured Notes Indenture (as defined in the Purchase Agreement).
(c) The Corporation shall provide written notice to the Stockholders (i) within five (5) days of the exercise of any warrants by any stockholder of the Corporation (ii) of the number of outstanding shares of Common Stock and of Fully Diluted Shares Outstanding from time to time upon the reasonable request of the Stockholders. Each warrant issued by the Corporation on the Closing Date (as defined in the Purchase Agreement) shall include a blackout period of no less than twenty-five (25) days prior to the record date of any vote of the stockholders of the Corporation. In the event that any warrant not held by a Stockholder is exercised within ten (10) days before the beginning of such blackout period (a “Pre-Blackout Exercise”), the Stockholders will be given the opportunity during such blackout period to exercise that portion of their New Warrants necessary for them to hold, in the aggregate, up to forty nine (49%) of the Fully Diluted Shares Outstanding.
(d) The Corporation shall, upon receipt of reasonable notice, provide the Stockholders with such information as the Stockholders may reasonably require in order to calculate such Stockholder’s percentage ownership of Common Stock and the number and ownership of any then outstanding Derivative Securities.
Appears in 2 contracts
Sources: Stockholders' Agreement (Egalet Corp), Stockholders' Agreement
Standstill. The Buyer hereby agrees thatNeither the Participant nor any of its Representatives that has been provided with Confidential Information, during for a period of one year from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this Agreement, unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, shall in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or a director, officer or Affiliate prior written consent of the Buyer):
Company’s Board of Directors or in response to a written request from or on behalf of the Company: (ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (Ai) any acquisition of any voting securities (or beneficial ownership thereof) ), or rights or options to acquire any voting securities (or beneficial ownership thereof) ), or any assets or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company, any of its subsidiaries or affiliates or the assets of the Company or any its subsidiaries or affiliates constituting a significant portion of the Subsidiaries consolidated assets of the Company and its subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofaffiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such these terms are used in the proxy rules and regulations of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
Company or any of its affiliates; (iib) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) rules and regulations of the ▇▇▇▇ ▇▇▇Securities and Exchange Commission) with respect to the securities Company or otherwise act in concert with any Person in respect of the Company or any Company’s securities, without the prior written consent of the Subsidiaries Chief Executive Officer (or Company Controlled Affiliates;
similar senior officer) of the Company; (iiic) otherwise act, alone or in concert with othersanother Person, to seek representation on or to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
Company; (ivd) take any action which would or would reasonably be expected to force the Company other party to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party Person with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate provisions of the Buyer toimmediately preceding sentence notwithstanding, during you may, prior to the Standstill Period, directly expiration of such one year period and subject to applicable laws (including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses (a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or indirectly, publicly request make available to the Participant any information that the Company (or its directors, officers, employees or agents) provides to amend or waive any provision of this Section 4(l) (including this sentence)third parties that are considering a Possible Transaction.
Appears in 2 contracts
Sources: Confidentiality Agreement, Confidentiality Agreement (GCP Sunshine Acquisition, Inc. A Delaware Corp)
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”a) Subject to Section 3.4(c), unless specifically invited in writing by the Company, Investor agrees that the Buyer Investor will not, and will cause the other Standstill Entities not permit any directorto, officer or Affiliate without the prior written consent of the Buyer toCompany(as approved by the Board, in any mannerto the knowledge of the Investor), directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect), or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect initiate or participate in, support or assist any third party with respect to, or provide or guarantee financing for any third party in connection with:
(A) any acquisition of any shares of Company Common Stock or any rights or securities convertible into or exercisable or exchangeable for shares of Company Common Stock to the extent that such acquisition would increase the Standstill Entities’ (1) aggregate beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of Company Common Stock or economic interest in Company Common Stock pursuant to any Synthetic Long Position (or other derivative arrangement or transaction that has similar economic consequences, in whole or in part, to an acquisition of Company Common Stock immediately after such acquisition) equivalent to more than twenty-five percent (25%) of the then-outstanding shares of Company Common Stock or (2) aggregate beneficial ownership thereof(as defined in Rule 13d-3 under the Exchange Act) of Company Common Stock immediately after such acquisition to more than twenty-five percent (25%) of the Total Voting Power (it being understood that, for purposes of this paragraph (a), any increase in the Standstill Entities’ beneficial ownership of, or economic interest in, Company Common Stock resulting from the Company’s repurchases of Company Common Stock or other actions by the Company to reduce the number of outstanding shares of Company Common Stock or resulting from transactions to which none of the Standstill Entities are parties will not constitute an acquisition of shares of, or an increase in beneficial ownership of or economic interest in, Company Common Stock or any rights or options securities convertible into or exercisable or exchangeable for shares of Company Common Stock by any of the Standstill Entities);
(B) any acquisition of more than 5% of the consolidated assets of the Company and its Subsidiaries, taken as a whole (other than pursuant to acquire the Business Partnership Agreement or other similar commercial agreements or arrangements with the Company or any securities Subsidiary of the Company);
(C) any acquisition of any bond, debenture, indenture, credit agreement, note or beneficial ownership thereof) any other evidence of indebtedness of the Company or its Subsidiaries (other than pursuant to the Business Partnership Agreement or other similar commercial agreements or arrangements with the Company or any Subsidiary of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent Company); or
(9.99%) of the shares of Common Stock then outstanding, (BD) any tender or exchange offer, merger or other business combination involving the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofother sale, (C) any recapitalization, restructuring, liquidation, dissolution lease or other extraordinary transaction disposition of assets of the Company and its Subsidiaries representing all or substantially all of the consolidated assets of the Company.
(ii) make, or in any way participate in, any solicitation of proxies to vote Company Common Stock or solicitation of action by written consent, or seek to advise or influence any person or entity in connection with any vote or action by written consent, of the holders of Company Common Stock, except in each case for any solicitation described in Rule 14a-2(a)(2) under the Exchange Act;
(iii) grant any proxies or right to act by written consent with respect to Company Common Stock other than in accordance with and consistent with the recommendation of the Board, deposit any Company Common Stock in a voting trust or enter into any other understanding, arrangement or agreement with respect to the voting of Company or any Common Stock other than in accordance with and consistent with the recommendation of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the CompanyBoard;
(iiiv) seek to obtain representation on the Board (other than to the extent designated in accordance with the terms of the Series A Preferred Stock);
(v) form, join or in any way participate in a “group” (within as such term is used in Rule 13d-5 under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliatesactions otherwise prohibited by this Section 3.4(a);
(iiivi) otherwise actsolicit, alone discuss with, or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions agreement, arrangement or arrangements understanding with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit actions prohibited by this Section 3.4(a);
(vii) make any director, officer public announcement of its intention or Affiliate desire take any of the Buyer actions otherwise prohibited by this Section 3.4(a) or its support for or opposition to, during the Standstill Periodor intention as to how it would vote or act by written consent with respect to, directly any matter to be submitted to a vote of holders of Company Common Stock, or indirectly, publicly request take any action (including submitting any proposal or offer) that could reasonably be expected to require public disclosure by the Company regarding any of such other actions otherwise prohibited by this Section 3.4(a), including as a result of a Series A Designee, in connection with such action taken, resigning from the Board or failing to stand for re-election to the Board; or
(viii) request, propose or otherwise seek any amendment or waiver of any of the provisions of this Section 3.4(a). provided that none of the foregoing, other than Section 3.4(a)(vii) (1) shall prevent, restrict, encumber or in any way limit the ability of any Series A Designee to vote on matters or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in his or her capacity as a director; (2) shall prevent, restrict, encumber or in any way limit the Investor or any Standstill Entity from transferring or otherwise disposing of any Class A Common Stock in accordance with this Agreement, from forming, joining or participating in any group consisting solely of Standstill Entities, from soliciting, conducting any discussions with, or entering into any agreement, arrangement or understanding with any Standstill Entity or from exercising its voting, designation and other rights as a holder of Series A Preferred Stock; (3) shall apply to or restrict, encumber or in any way limit any confidential, non-public discussions or other communications between or among directors, officers, employees or agentsagents of any Standstill Entities; or (4) shall be deemed to amend restrict, encumber or waive in any provision way limit any Standstill Entity from voting (x) against any proposal of a third party regarding a merger or other business combination, or determining not to tender or exchange any securities pursuant to any tender or exchange offer, regardless of whether such proposal or offer is supported by the Board or any committee thereof (except as specifically required under Section 3.1 with respect to the voting of the Series A Preferred Stock) or (y) in favor of any matter recommended by the Board for approval by the holders of Company Common Stock.
(b) The provisions of paragraph (a) of this Section 4(l3.4 shall be in effect only during the period (the “Standstill Period”) from the Closing until, and shall terminate without any further action by any party upon, the earliest of:
(i) the fourth anniversary of the Closing Date;
(ii) (x) the Company or the Board publicly approving, accepting, authorizing or recommending to the Company’s stockholders their approval of, or their conveyance of any Class A Common Stock or other securities pursuant to, any Acquisition Proposal or (y) entry by the Company or any of its Subsidiaries into a definitive agreement with any Person with respect to an Acquisition Proposal; provided that the Standstill Period shall again be applicable (unless or until otherwise terminated pursuant to this Section 3.4(b)) if the Board publicly withdraws approval, acceptance, authorization or recommendation of such Acquisition Proposal, or such agreement is terminated prior to closing of the transaction contemplated thereunder;
(iii) termination of the Business Partnership Agreement by the Investor (or its Affiliate party thereto) as a result of a material breach of the Company, following a determination by a court of competent jurisdiction, not subject to further appeal, that the Company had materially breached the Business Partnership Agreement in such a manner that would give rise to the Investor’s (or such Affiliate’s) right to terminate the Business Partnership Agreement;
(iv) any Person (other than any Standstill Entity) or “group” (as such term is used in Rule 13d-5 under the Exchange Act, but excluding any group that includes any Standstill Entity) having acquired or announced its intention to acquire, including by commencement of a tender offer or exchange offer, beneficial ownership of 25% or more of the outstanding Company Common Stock (or, in the case of such acquisition or announcement by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of her Affiliates, any group that includes ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and her Affiliates, beneficial ownership of 75% or more of the outstanding Company Common Stock) if within ten (10) Business Days after such public acquisition or proposal, the Board does not publicly object to, recommend against or announce that it does not intend to approve or enter into such transaction with such Person or group, as applicable;
(v) the first day after the date of this sentenceAgreement on which the Standstill Entities have not (A) beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) and/or had a Synthetic Long Position with respect to, in the aggregate, more than five percent (5%) of the outstanding shares of Class A Common Stock or Total Voting Power for any 6-month period on a continuous basis or (B) had a Series A Designee on the Board for any 6-month period on a continuous basis;
(vi) commencement of an involuntary proceeding or filing of an involuntary petition seeking (A) liquidation, reorganization or other relief in respect of the Company or any Subsidiary that represents all or substantially all of the Company’s assets or its debts (a “Material Subsidiary”), or of all or substantially all of the Company’s assets or its debts, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary of the Company or for all or substantially all of the Company’s or any such Material Subsidiary’s assets; and
(vii) the Company or any Material Subsidiary of the Company (A) voluntarily commencing any proceeding or filing any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (B) consenting to the institution of, or failing to contest in a timely and appropriate manner any proceeding or petition described in the immediately-preceding clause (vi), (C) applying for or consenting to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any such Material Subsidiary or for all or substantially all of the Company’s or any such Material Subsidiary’s assets, (D) filing an answer admitting the material allegations of a petition filed against it in any such proceeding or (E) making a general assignment for the benefit of creditors.
(c) Notwithstanding Section 3.4(a), but subject to Section 3.4(d), and as long as the Standstill Entities are in compliance, in all material respects, with their obligations under this Agreement and the Purchase Agreement, the Standstill Entities shall not be prohibited (i) from stating to the Board that one or more Standstill Entities wishes to discuss with the Board a potential extraordinary transaction otherwise prohibited under Section 3.4(c), so long as (x) the making of such statement does not obligate the Investor or any other Standstill Entity (or group of which they are part) to make any public disclosure, (y) such statement does not contain specific material terms for an extraordinary transaction (such as price, form of consideration or other material terms) and (z) such statement is made on a confidential basis in a manner that would not reasonably be expected to require public disclosure by the Company of such statement or any related circumstances or conditions thereof; and (ii) participating as potential acquirer or strategic partner in any strategic review process publicly announced by the Company or the Board, whether by press release, filing with the SEC or otherwise, that is reasonably expected to result in an Acquisition Proposal or a proposal or offer that would be an Acquisition Proposal if it were made by a Person other than a Standstill Entity, so long as the Investor complies and cooperates with the guidelines of such strategic review process (provided that such guidelines may be as determined by the Board in its reasonable discretion, so long as Investor has been given the reasonable opportunity to participate in such process).
(d) During the Standstill Period, and in addition to the Investor ‘s other obligations under this Section 3.4, the Investor agrees that the Standstill Entities will not, directly or indirectly, without the prior consent of the Company (as approved by the Board, to the knowledge of the Investor), effect (whether publicly or otherwise), initiate or participate in, support or assist any third party with respect to, or provide or guarantee financing for any third party, any offer to acquire in excess of ten percent (10%) of the shares of Company Common Stock or ten percent (10%) of the Total Voting Power (by merger or consolidation or pursuant to a tender or exchange offer or otherwise) in which all holders of Company Common Stock would not be entitled to participate and receive the same consideration per share for each such share of Company Common Stock unless it is confirmed at the time such offer is made that such acquisition shall be subject to, and conditioned upon, the review and approval of a special committee of independent directors of the Board.
Appears in 2 contracts
Sources: Investor Rights Agreement (Martha Stewart Living Omnimedia Inc), Securities Purchase Agreement (Martha Stewart Living Omnimedia Inc)
Standstill. The Buyer hereby agrees that(a) For so long as the Investor Group Parties beneficially own the Nominee Right Threshold, during the period commencing on Investor shall not and shall cause each of the Closing Date Investor Group Parties and ending on their respective officers, directors and agents, not to, without the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by prior written consent of the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer)::
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assistmanner acquire, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options agree to acquire any securities (or beneficial ownership thereof) make to securityholders of the Company any offer to acquire, directly or indirectly, any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) formpropose or offer to enter into, join directly or in indirectly, any way participate in amalgamation, plan of arrangement, merger or business combination involving the Company or its Subsidiaries or to purchase, directly or indirectly, a “group” (within the meaning of Section 13(d)(3) material portion of the ▇▇▇▇ ▇▇▇) with respect to the securities property or assets of the Company or any of the Subsidiaries or Company Controlled Affiliatesits Subsidiaries;
(iii) directly or indirectly “solicit” or participate or join with any person in the “solicitation” of any “proxies” (as such terms are defined in the Securities Act (Ontario)) to vote, or seek to influence any person with respect to the voting of, any Common Shares or other securities of the Company;
(iv) other than with respect to the Investor Nominee, seek (i) representation on the Board, (ii) the removal of any directors on the Board, or (iii) a change in the size or composition of the Board;
(v) otherwise act, act alone or in concert Act Jointly or In Concert with others, subject to the Investor Nominee performing his or her duties as a director of the Company, to seek to control or to influence the management, the board of directors Board or the policies of the Company Company;
(vi) make any public or private disclosure of any consideration, intention, plan or arrangement inconsistent with any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveforegoing; or
(vvii) enter into any discussions advise, assist, encourage or arrangements Act Jointly or In Concert with any third party other Person in connection with respect to any of the foregoing. The Buyer further agrees , provided, however, that it shall not, and shall not permit any director, officer or Affiliate if the Investor Group Parties cease to beneficially own at least 14.9% of the Buyer toOutstanding Common Shares, during the Standstill PeriodInvestor will be entitled to acquire in open market transactions on or through the facilities of the TSX or NASDAQ such number of Common Shares representing 5% of the Outstanding Common Shares, directly or indirectly, publicly request provided further that at no time while and for so long as the Company (or its directors, officers, employees or agents) to amend or waive any provision Investor Group Parties beneficially own the Nominee Right Threshold shall the number of this Section 4(l) (including this sentence)Common Shares beneficially owned by the Investor Group Parties exceed 19.9% of the Outstanding Common Shares.
Appears in 2 contracts
Sources: Subscription Agreement (Hydrogen Co), Subscription Agreement (Hydrogenics Corp)
Standstill. The Buyer hereby Ardsley Group and each member of the Ardsley Group agrees that, that during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”, neither it nor he will, and it or he will cause each of its or his Controlled Affiliates or agents or other persons acting on its or his behalf not to:
(a) without the prior written agreement of the Company (as authorized by the Board by a majority vote, excluding the Designee Directors), unless specifically invited acquire, offer to acquire or agree to acquire, alone or in writing concert with any other individual or entity, by purchase, tender offer, exchange offer, agreement, merger, business combination or any other manner, beneficial ownership of any securities of the Company, if, after completion of such acquisition or proposed acquisition, the Buyer will not, and will not permit any director, officer or Affiliate aggregate beneficial ownership of all members of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate Ardsley Group shall be more than 9.9% of the Buyer):outstanding Common Stock (calculated based on the Company’s latest annual or quarterly report with the SEC pursuant to Section 13 or 15(d) of the Exchange Act); provided, however, that such limitation shall not apply to shares acquired directly pursuant to stock dividends or similar distributions of Common Stock made on a pro rata basis to all holders of Common Stock;
(ib) effect or seek, offer or propose submit any stockholder proposal (whether publicly binding or precatory, pursuant to Rule 14a-8 under the Exchange Act, or otherwise) to effector any notice of nomination of director candidates or notice of any other business for consideration, or announce nominate any intention director candidate for election to effect the Board or cause withhold authority for or participate oppose any director candidates nominated by the Board;
(c) form, join in or in any other way assistparticipate as a member of or otherwise in a “partnership, facilitate 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 solely with other members of the Ardsley Group or one or more Controlled Affiliates of a member of the Ardsley Group with respect to the Common Stock currently owned as set forth in the Ardsley Group’s latest amendment to its Schedule 13D or Common Stock acquired in the future (subject to the limitations set forth in Section 6(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders, finance any solicitation of proxies or written consents of stockholders or engage in or conduct any solicitation of any binding or nonbinding referendum with respect to the Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” or “consent” within the meaning of Rule 14a-1 under the Exchange Act to vote (including any exempt solicitation in accordance with Rule 14a-2(b)(7) under the Exchange Act), or advise, encourage or seek to influence any person with respect to voting (or abstaining from 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), other than a “solicitation” or acting as a “participant” in support of all of the director candidates nominated by the Board at any stockholder meeting; provided, however, that nothing herein will limit the ability of the Ardsley Group to announce in accordance with Rule 14a-1(l)(2)(iv) under the Exchange Act (but not including the parenthetical exception in such clause (iv)) and solely in respect of shares of Common Stock beneficially owned by it, its voting intention with respect to any Board-approved publicly announced proposals or agreements relating to a merger, acquisition, disposition of all or substantially all of the assets of the Company or other business combination involving the Company requiring a vote of stockholders of the Company;
(e) call, seek to call, or to request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a binding or precatory stockholder 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, assist or knowingly encourage any other Person person to effect initiate or seekpursue such a proposal or request) or otherwise acting alone, offer or propose in concert with others, seek to control or influence the governance, affairs, business, management or policies of the Company;
(whether publicly f) vote “for” the election of any nominee (or otherwisenominees) for election as directors of the Company other than those persons who are nominated by the Board, or seek the removal of or vote to effect remove any member of the Board who was nominated by the Board;
(g) without the prior written agreement of the Company (as authorized by the Board by a majority vote, excluding the Designee Directors), commence, propose, offer, consummate, or participate in, make any public announcement regarding (Ai) any acquisition of any securities (assets or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) businesses of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender offer or exchange offer, merger merger, acquisition or other form of business combination involving the Company or any of the Subsidiaries its subsidiaries, or Company Controlled Affiliates or any division or line of business of any thereof, (Ciii) any recapitalization, reorganization, restructuring, liquidation, dissolution dissolution, winding up or other similar extraordinary transaction with respect to the Company or any of its subsidiaries; provided, however, that the Subsidiaries limitations in this Section 6(g) shall not restrict or Company Controlled Affiliates prohibit (A) the tender by the Ardsley Group (or any division thereofmember of the Ardsley Group or Affiliate of the Ardsley Group or of such member) of shares of Company Common Stock it or he beneficially owns or holds pursuant to a bona fide tender or exchange offer commenced and conducted, not in violation of this Section 6, by (1) any person (other than the Ardsley Group, any member thereof or any Affiliate of the Ardsley Group or of such member) in compliance with Regulations 14D and 14E, respectively, under the Exchange Act and, to the extent applicable (in the case of an exchange offer), the Securities Act or (2) the Company pursuant to Rule 13e-4 and Regulation 14E, respectively, under the Exchange Act and, to the extent applicable (in the case of an exchange offer), the Securities Act, or (DB) the Ardsley Group (or any “solicitation” of “proxies” (as such terms are used in the proxy rules member of the SECArdsley Group or Affiliate of the Ardsley group or of such member) from voting shares of Company Common Stock it beneficially owns in its sole discretion in connection with the consideration and adoption by the Company’s stockholders of any definitive agreement to which any person (other than the Ardsley Group, any member of the Ardsley Group or consents to vote any voting securities Affiliate of the Ardsley Group or of such member) and the Company are principal parties, which has been approved and recommended by the Board, that provides for a merger, sale of all or substantially all of the Company’s assets, recapitalization, restructuring, reorganization, liquidation, dissolution, winding up or other extraordinary transaction for which the adoption thereof by the Company’s stockholders is required pursuant to the Charter and/or applicable law;
(iih) formpublicly disclose, join or induce, assist or knowingly encourage any person to make any public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or authority, or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of this Section 6, or otherwise seek, in any way participate in a “group” (within manner that would require public disclosure by the meaning of Section 13(d)(3) Ardsley Group, any of the ▇▇▇▇ ▇▇▇members of the Ardsley Group or any of their Affiliates, to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(i) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the securities market price or value of the Company Company’s securities, or enter into any agreement, arrangement, commitment, plan or understanding with respect to any other Derivatives;
(j) knowingly (based on reasonable inquiry) assign, sell, transfer, pledge or otherwise dispose of any shares of Common Stock in a private transaction to any person who upon such assignment, sale, transfer, pledge or disposition would be deemed to beneficially own 9.9% or more of the issued and outstanding Common Stock;
(k) enter into any agreements, arrangements, commitments, plans or understandings (whether written or oral) with, or advise, finance, assist or knowingly encourage, any other person that engages, or offers or proposes to engage, in any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveforegoing; or
(vl) enter into take or cause or induce or assist others to take any discussions or arrangements action inconsistent with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate Without limiting the generality of the Buyer toforegoing, during nothing contained in this Section 6 shall be deemed to prohibit the Standstill Period, directly Designee Directors from taking any action (or indirectly, publicly request omitting to take any action) in their capacity as directors of the Company (or its directors, officers, employees or agents) and in compliance with their fiduciary duties under applicable law to amend or waive any provision all of this Section 4(l) (including this sentence)the Company’s stockholders.
Appears in 1 contract
Sources: Settlement Agreement (World Energy Solutions, Inc.)
Standstill. The Buyer hereby Each of the Shareholders agrees that, during the that for a period commencing on of two (2) years after the Closing Date and ending on Date, neither such Shareholder nor any of his or its Affiliates will:
(a) in any manner acquire, agree to acquire, make any offer or proposal to acquire, or announce or disclose any intention to make an offer or proposal to acquire, directly or indirectly, by purchase or otherwise (except pursuant to a stock split, stock dividend, or other pro rata distribution by the second annual anniversary thereof (the “Standstill Period”Company to holders of any class of its outstanding Voting Securities), unless specifically invited in writing any Voting Securities other than Voting Securities issued to such Shareholder (i) pursuant to the Stock Purchase Agreement, or (ii) by the Company, PROVIDED HOWEVER, that such Shareholder may make open market purchases (including block trades) that are effected through the Buyer will notmedium of any national securities exchange or inter-dealer automated quotation system on which the Voting Securities are listed or admitted for quotation;
(b) propose to enter into, and will not permit or announce or disclose any director, officer or Affiliate of the Buyer to, in any mannerintention to propose to enter into, directly or indirectly (including by directing indirectly, any merger, business combination or causing any other Person that is not similar transaction involving the Buyer Company or its Affiliates or to purchase, directly or indirectly, all or a director, officer or Affiliate material portion of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) assets of the Company or any of the Subsidiaries or Company Controlled Affiliates ifits Affiliates;
(c) make, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregateany way participate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) directly or indirectly, in any "solicitation" of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “"proxies” " (as such terms are defined or used in the proxy rules Regulation 14A of the SECExchange Act) to vote, or consents seek to vote advise or influence any person with respect to the voting securities of, any Voting Securities, or become a "participant" in any "election contest" (as such terms are defined or used in Regulation 14A of the Exchange Act) relating to the election of directors of the Company, or initiate, propose or solicit holders of Voting Securities for the approval of any shareholder proposal, provided that no Shareholder shall not be deemed to have engaged in a "solicitation" or to have become a "participant" by reason of his membership on the Board of Directors of the Company or by voting his Shares in accordance with this Agreement or by reason of his participation in the Company's solicitation of proxies in connection with any annual or special meeting of shareholders of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).
Appears in 1 contract
Standstill. The Buyer hereby Each Stockholder agrees that, during that for a period from and after ---------- the period commencing on date hereof until the Closing Date and ending on earlier of (a) the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate termination of the Buyer toprovisions of Section 2.1 hereof in accordance with its terms or (b) the termination of this Agreement in accordance with its terms, in neither it nor any mannerof its Subsidiaries will, without the prior written consent of the other party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly (including indirectly, by directing purchase or causing otherwise, any other Person that is not the Buyer voting securities or a director, officer direct or Affiliate indirect rights to acquire any voting securities of the Buyer):
(i) effect Company or seek▇▇▇▇▇, offer or propose (whether publicly or otherwise) to effectas the case may be, or announce any intention to effect Subsidiary thereof, or cause any material amount of the assets of the Company or participate in ▇▇▇▇▇, as the case may be, or any Subsidiary or division thereof outside the ordinary course of business; (ii) make, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) directly or indirectly, any acquisition "solicitation" of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) to vote, or consents seek to vote advise or influence any Person with respect to the voting of, any voting securities of the Company;
(ii) formCompany or ▇▇▇▇▇, join as the case may be, for the purpose of changing or in any way participate in a “group” (within influencing the meaning of Section 13(d)(3) control of the Company or ▇▇▇▇▇, as the case may be; or (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction involving the Company or ▇▇▇▇▇, as the case may be, or its securities or assets; provided, -------- however, the foregoing restrictions shall not (x) preclude ▇▇▇▇▇ from (A) ------- acquiring the securities contemplated by Article IV of this Agreement and the shares of Common Stock of the Stock Purchase Agreement and the transactions contemplated hereby and thereby, including without limitation the transactions contemplated by the Initial Purchase Agreement and the Universal Agreement (each as defined in the Stock Purchase Agreement), (B) filing a Schedule 13D in connection with the transactions contemplated by the Stock Purchase Agreement or the Exchange Agreement among Titus, Fargo, Herve Caen and ▇▇▇▇ ▇▇▇▇ of even date herewith (the "Exchange Agreement"), (C) voting its shares of Common Stock ------------------ within its discretion on any matter submitted for a vote or consent of the Company's stockholders, (D) taking any other action contemplated by the Stock Purchase Agreement, or (E) purchasing shares of Company Stock pursuant to open- market transactions on a national securities exchange or in the over-the-counter market; provided, further, that the restrictions on ▇▇▇▇▇ in this Section 3.6 -------- ------- shall lapse automatically to the extent any Person other than ▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇ takes any action with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
matters described in clauses (ii) and (iii) otherwise actabove, alone or (y) preclude Fargo from (A) acquiring the shares of ▇▇▇▇▇ common stock pursuant to the Exchange Agreement or (B) filing a Schedule 13D in concert connection with others, to seek to control or influence the management, transactions contemplated by the board of directors Stock Purchase Agreement or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Exchange Agreement.
Appears in 1 contract
Standstill. The Buyer hereby agrees that, during During the period commencing on the Closing Date effective date of the Company’s first firm commitment underwritten public offering of its Common Stock registered under the Securities Act of 1933, as amended (the “IPO”) and ending on the second annual anniversary thereof earlier of: (x) the date the Company publicly announces its intent to consummate a Change of Control (as defined below), provided such announcement is not made by the Company in response to a violation by Merck of the covenant in Section 1(d) or a prior public disclosure of the intent to consummate such transaction by Merck through no fault of the Company, (y) the termination of the Collaboration Agreement and (z) the expiration of the Initial Research Program Term (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit neither Merck nor any director, officer or Affiliate of the Buyer toRepresentatives (as defined below) of Merck will, in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or a director, officer or Affiliate prior written consent of the Buyer):Company:
(ia) effect or seekmake, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or initiate, cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose in: (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any Beneficial Ownership (as defined below) of securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any to the extent that such acquisition would result in Merck’s Beneficial Ownership of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, exceeding 19.9% (the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, “Maximum Ownership Percentage”); or (Dii) any “solicitation” of “proxies” (as such those terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents with respect to vote any voting securities of the Company; provided, however, that notwithstanding the provisions of this Section 1(a), if the number of shares of then outstanding common stock of the Company is reduced or if the ownership percentage of Merck is increased as a result of a repurchase by the Company of shares of common stock, or a stock split, stock dividend or a recapitalization of the Company, Merck shall not be required to dispose of its holdings of shares of the Company’s common stock even though such action resulted in Merck’s Beneficial Ownership increasing;
(b) form, join or participate in a “group” (as described in the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) with respect to the Beneficial Ownership of any securities of the Company;
(iic) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise publicly act, alone or in concert with others, to seek to control or influence the management, Board of Directors (the board of directors “Board”) or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivd) take any action which would or would reasonably be expected to force that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision a)” of this Section 4(l1;
(e) agree or offer to take, or encourage or publicly propose the taking of, any action referred to in clause “(including this sentencea).,” “(b),” “(c)” or “
Appears in 1 contract
Standstill. The Buyer hereby agrees thatUntil the occurrence of a Termination Event, during the period commencing on the Closing Date Intercapital shall not, directly or indirectly, and ending on the second annual anniversary thereof shall cause each of their Affiliates not to (together with Intercapital, the “Standstill PeriodSpecified Stockholders”), unless specifically invited in writing directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, or sell short or agree to sell short, directly or indirectly, any securities or direct or indirect rights to acquire any Voting Securities (or any derivative based on or relating to such securities) of the Company, the Buyer will not, and will not permit or of any director, officer successor to or Affiliate person in control of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effectCompany, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) assets of the Company or any division thereof or of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisitionsuccessor or controlling person; provided, however, that the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the Specified Stockholders may collectively Beneficially Own shares of Common Stock, in an aggregate amount for all Specified Stockholders, that, when added to the Common Stock then outstandingissued to the Specified Stockholders pursuant to the Merger Agreement at the Closing, (B) any tender or exchange offer, merger or other business combination involving the Company or any does not exceed 6% of the Subsidiaries then issued and outstanding shares of Common Stock;
(b) seek or Company Controlled Affiliates propose to influence or any division control the management or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any policies of the Subsidiaries Company, make or Company Controlled Affiliates in any way participate, directly or any division thereofindirectly, or (D) in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any Voting Securities, make or propose any shareholder proposal under Rule 14a-8 under the Exchange Act, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary thereof; provided, however, that the foregoing shall not be deemed breached by having the right to the Observer.
(c) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, share exchange, stock or asset purchase, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any Subsidiary thereof or any of their securities or assets;
(d) seek election of or seek to place a director on the Company Board or seek the removal of any director of the Company, or call or seek to have called any meeting of the shareholders of the Company, or execute any written consent in lieu of a meeting of the stockholders of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(ve) enter into any discussions discussions, negotiations, arrangements or arrangements understandings with or advise or assist any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit or otherwise form, join or in any directorway engage in discussions relating to the formation of, officer or Affiliate participate in, a Group in connection with any of the Buyer to, during foregoing; or
(f) request the Standstill PeriodCompany or any of its representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) 6.4 (including this sentence), or contest the validity of this Section 6.1 (including this sentence).
Appears in 1 contract
Sources: Stockholders Agreement (Dealertrack Technologies, Inc)
Standstill. The Buyer hereby agrees thatWithout the prior written consent of Placement Agent, during from the period commencing on date hereof until thirty (30) days after the Closing Date and ending on Date, neither the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit Company nor any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
subsidiary shall (i) effect issue, enter into any agreement to issue or seekannounce the issuance or proposed issuance of any Common Stock or common stock equivalents, offer other than an Exempt Issuance or propose (whether publicly or otherwiseii) to effectfile any registration statement including a registration statement on Form S-8 in connection with any employee benefit plan, or announce any intention to effect amendment or cause or participate in or in any way assistsupplement thereto. For purposes of this Agreement, facilitate or encourage any other Person to effect or seek, offer or propose “Exempt Issuance” means the issuance of (whether publicly or otherwisea) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingor options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (Bb) any tender securities upon the exercise or exchange offerof or conversion of securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, merger provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other business combination involving than in connection with stock splits or combinations) or to extend the Company or any term of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofsuch securities, (Cc) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or any strategic transactions approved by a majority of the Subsidiaries disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or Company Controlled Affiliates;
permit the filing of any registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any such issuance shall only be to a Person (iiior to the equityholders of a Person) otherwise actwhich is, alone itself or through its subsidiaries, an operating company or an owner of an asset in concert a business synergistic with others, to seek to control or influence the management, the board of directors or the policies business of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected and shall provide to force the Company additional benefits in addition to make a public announcement regarding any the investment of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall notfunds, and but shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request include a transaction in which the Company (is issuing securities primarily for the purpose of raising capital or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)an entity whose primary business is investing in securities.
Appears in 1 contract
Standstill. The Buyer hereby Each of the members of the Shareholder Group agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer he or it will not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its behalf not permit to, and will cause his or its respective Associates not to:
(a) acquire, offer to acquire or agree to acquire, alone or in concert with any directorother individual or entity, officer by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership of any securities of the Company or any securities of any Affiliate of the Buyer toCompany, if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than 14.99% of the outstanding shares of Common Stock;
(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) 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 solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used 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) seek, in any mannercapacity, directly to call, or indirectly to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (including by directing or causing otherwise induce, encourage or assist any other Person that is not 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 Buyer governance or a director, officer or Affiliate policies of the Buyer):Company, except as expressly permitted by this Agreement;
(if) effect or seekseek to effect, 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 announce any intention to effect or cause or participate in in, or in any way assist, assist or facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in, in (Ai) any acquisition of any securities (material assets or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) businesses of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender offer or exchange offer, merger merger, acquisition or other business combination involving the Company or any of the Subsidiaries its subsidiaries, or Company Controlled Affiliates or any division or line of business of any thereof, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries;
(g) publicly disclose, or cause or facilitate the Subsidiaries public disclosure (including without limitation the filing of any document or Company Controlled report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any division thereofwaiver, consent under, or amendment of, any provision of this Agreement;
(Dh) publicly disparage any “solicitation” of “proxies” (as such terms are used in the proxy rules member of the SEC) Board or consents to vote any voting securities management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(iii) formenter into any arrangements, join 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 way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveforegoing; or
(vj) enter into take or cause or induce or assist others to take any discussions or arrangements action inconsistent with any third party with respect to any of the foregoing. The Buyer further agrees Notwithstanding the foregoing, it is understood and agreed that it shall not, and this Agreement shall not permit any directorbe 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), officer (ii) engaging in discussion with other stockholders or Affiliate (iii) soliciting, or encouraging or participating in the solicitation of, proxies or consents with respect to voting securities of the Buyer to, during the Standstill Period, directly or indirectly, publicly request 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 its directors, officers, employees sale of assets or agentsa 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) to amend or waive any provision a change of this Section 4(l) (including this sentence)control of the Company.
Appears in 1 contract
Standstill. The Buyer hereby In an event that the Transaction has not been consummated, Next Frontier Pharmaceuticals agrees that, during for a period of twelve (12) months from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this Agreement, unless specifically invited in writing by the board of directors of the Company, the Buyer neither Next Frontier Pharmaceuticals nor any Person with whom Next Frontier Pharmaceuticals may be deemed to be acting in concert, will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender or exchange offer, merger or other business combination involving the Company or or, any of the Subsidiaries subsidiaries or assets of the Company Controlled Affiliates or any division or line constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofits subsidiaries, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
; (iib) form, join or in any way participate in a “group” (within as defined under the meaning Securities Exchange Act of Section 13(d)(3) of 1934, as amended (the ▇▇▇▇ ▇▇▇“1934 Act”)) with respect to the securities of the Company or otherwise act in concert with any Person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors or the policies of the Company or any to obtain representation on the board of directors of the Subsidiaries or Company Controlled Affiliates;
Company; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further Next Frontier Pharmaceuticals also agrees during such period not to request (in any manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence); provided, that in the event that the Company or any of its subsidiaries issues any securities after the date hereof, the Company shall, as soon as reasonably practicable, provide Next Frontier Pharmaceuticals notice of such issuance so that Next Frontier Pharmaceuticals may seek to comply with the terms of this Section 14 that are applicable to such newly issued securities. The term “securities”, as used in this Agreement, shall include, without limitation, any securities of the Company and any derivative, swap or other transaction the purpose or effect of which is to give Next Frontier Pharmaceuticals or any Person with whom Next Frontier Pharmaceuticals may be deemed to be acting in concert, economic risk similar to ownership of shares of any class or series of the Company, including due to the fact that the value of such derivative, swap or other transaction is determined by reference to the price, value or volatility of any shares of any class or series of the Company, or which derivative, swap or other transaction provides, directly or indirectly, the opportunity to profit from any increase in the price or value of shares of any class or series of the Company.
Appears in 1 contract
Standstill. The Buyer hereby agrees that, during Without the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by prior approval of the Company, from the Buyer Effective Date until the twenty-four (24) month anniversary of the Effective Date, the Investor agrees that it will not, and will not permit any director, officer or Affiliate of the Buyer to, in any mannercause its Affiliates to not, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seekpurchase, offer or propose (whether publicly or otherwise) to effectpurchase, or announce agree to purchase or otherwise acquire beneficial ownership (as determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any intention Common Stock, or any securities convertible or exchangeable into Common Stock, excluding any shares of Common Stock acquired pursuant to effect or cause or participate the transactions contemplated in or in any way assistthe Collaboration Agreement;
b) make, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition solicitation of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents proxies to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of its subsidiaries, or propose to change or control the Subsidiaries management or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company by use of any public communication to holders of securities intended for such purpose; provided, however, that nothing in this Section 10.5 shall limit the Investor’s ability to vote or any transfer (subject to Sections 10.3 and 10.4 hereof) its Common Stock;
c) make a public proposal for a Change of Control, including a merger, consolidation or other business combination transaction or tender offer related thereto, or the purchase of all or substantially all of the Subsidiaries assets of the Company and its subsidiaries; or
d) knowingly encourage, accept, or Company Controlled Affiliates;
(iv) take support a tender, exchange, or offer proposal by any action Person other than the Investor, the consummation of which would result in a Change of Control. Notwithstanding anything to the contrary contained in this Agreement, (i) if at any time (A) a Third Party enters into an agreement with the Company contemplating a Change of Control, including a merger, consolidation or other business combination transaction or tender offer related thereto, or the purchase of all or substantially all of the assets of the Company and its subsidiaries, or publicly announces its intention to do so, then the foregoing restrictions set forth in this Section 10.5 shall be suspended and of no further force or effect until the termination of such agreement or the public announcement of a withdrawal or abandonment of such intention, at which time such restrictions will be reinstated and apply in full force and effect or (B) a Third Party commences, or publicly announces an intention to commence, a tender, exchange, or offer that, if consummated, would result in a Change of Control, then the foregoing restrictions set forth in this Section 10.5 shall be suspended and of no force or effect until the expiration or termination of a tender, exchange or offer that has been commenced or the public announcement of a withdrawal or abandonment of an intention to commence a tender, exchange or offer at which time such restrictions will be reinstated and apply in full force and effect; (ii) the Investor shall not be precluded from making any confidential offers or proposals to the Board in a manner reasonably be expected believed not to force require the Company to make a public announcement regarding of such offer or proposal; provided that Investor shall not publicly disclose any such offers or proposals; and (iii) Investor and its Affiliates shall not be precluded from owning or acquiring interests in mutual funds or similar entities that own capital stock of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall notCompany, and nothing herein shall not permit any director, officer prohibit passive investments by pension or Affiliate employee benefit plans of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Investor.
Appears in 1 contract
Sources: Share Purchase Agreement (Xenon Pharmaceuticals Inc.)
Standstill. The Buyer hereby Manager further agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof that neither it nor any of its Affiliates (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit defined below) nor any director, officer other person acting at its or Affiliate of the Buyer to, in any mannerits Affiliates’ direct or indirect instruction will, directly or indirectly (including by directing indirectly, alone, jointly, or causing in concert with any other Person that is not person, for a period of twelve (12) months after the Buyer or a directordate of this Agreement, officer or Affiliate without the prior written consent of the Buyer):Board:
(i) effect or seekacquire, announce an intention to acquire, offer or propose (whether publicly to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereofof any: (x) of the issued and outstanding capital stock, equity securities, debt securities or rights or options to acquire any securities (or beneficial ownership thereof) indebtedness of the Company or any of the Subsidiaries its subsidiaries (“Securities”), or Company Controlled Affiliates if(y) direct or indirect rights, after giving effect options, or derivative interests with respect to any such acquisition, the Buyer and/or Securities or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares issued and outstanding capital stock, equity securities, debt securities, or indebtedness of Common Stock then outstandingany person in control of the Company, or (Bz) assets or property of the Company or its subsidiaries, in each case in an amount in excess of the Securities held by the Manager and its Affiliates on the date set forth above;
(ii) (A) make any tender statement or proposal, whether written or oral, to the Board or to any Company director or officer, or make any public announcement or proposal whatsoever with respect to, or publicly support, a merger or other business combination, tender, or exchange offer, merger sale, or transfer of assets or properties, recapitalization, reorganization, dividend, share repurchase, liquidation, or other business combination involving extraordinary corporate transaction with the Company or any of the Subsidiaries or Company Controlled Affiliates its subsidiaries or any division or line other transaction which could result in a change of business control of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or (B) solicit or encourage any of the Subsidiaries other person to make any such statement or Company Controlled Affiliates or any division thereofproposal;
(iii) make, or (D) in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used defined in Rule 14a-1 under the proxy rules Securities Exchange Act of 1934, as amended (the SEC“Exchange Act”)) or consents to vote or deliver a written consent with respect to any voting securities of the Company;
(ii) formSecurities, join seek to advise, encourage, or in influence any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) person or entity with respect to the securities voting of any Securities or the Company delivery of a written consent with respect to any Securities, initiate or propose any stockholder proposal or induce or attempt to induce any other person to initiate any stockholder proposal, or execute any written consent, provided that this clause (iii) shall not prohibit the execution and delivery by the Manager or any of the Subsidiaries Manager’s representatives of a revocable proxy or Company Controlled Affiliatesconsent in response to a public proxy contest or consent solicitation made generally to all holders of Securities pursuant to, and in accordance with, the applicable rules and regulations under the Exchange Act;
(iiiiv) otherwise act, alone or in concert with others, to seek or propose to control or influence the management, the board of directors Board, or the policies or affairs of the Company or any of the Subsidiaries or Company Controlled Affiliatesits subsidiaries;
(ivv) form, join, or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Securities in connection with any of the foregoing;
(vi) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any person for membership on the Board, or take any action to remove any director from the Board or to change the size or composition of the Board;
(vii) take any action which would or would that could reasonably be expected to force require the Company to make a public announcement regarding the possibility of a transaction with the Manager or any of the types Manager’s Affiliates or any of matters set forth the other events described in clause (i) above; orthis Section;
(vviii) enter into take any discussions action challenging the validity or arrangements with enforceability of this Section;
(ix) advise, assist, encourage, instruct, or direct any third party with respect other person to do any of the foregoing. The Buyer further agrees that it shall not, and shall not permit ;
(x) make a public request to the Company or its stockholders to take any director, officer or Affiliate action in respect of the Buyer to, during the Standstill Period, directly foregoing matters or indirectly, publicly request that the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l19; or
(xi) (including this sentence)publicly disclose any intention, plan, or arrangement inconsistent with the foregoing.
Appears in 1 contract
Standstill. The Buyer hereby agrees As of the date hereof B▇▇▇ Capital Partners, LLC does not beneficially own (as such term is used in Rule 13d-3 under the Act, and including any right to acquire beneficial ownership, whether within sixty (60) days or any longer or shorter period of time) any securities of the Company or own any securities that derive their value in whole or in part from or by reference to the value of Company securities. You agree that, during for a period of eighteen (18) months from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this letter agreement, unless specifically invited in writing by the Company, the Buyer neither you nor any of your Informed Affiliates (nor any person acting at your or their direction) will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or assets of the Company Controlled Affiliates or any division or line the subsidiaries constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofits subsidiaries, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the CompanyCompany or any of its subsidiaries;
(iib) form, join or in any way participate in a “group” (within as defined in the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Act) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliatesany such securities;
(iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors, or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivd) take any action which would would, or would reasonably be expected to to, force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or;
(ve) disclose any intention, plan or arrangement inconsistent with the foregoing;
(f) enter into any discussions discussions, negotiations, understandings or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees ; or
(g) request that it shall not, and shall not permit the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). You further agree that, if at any time during such period, a member of your Deal Team (as hereinafter defined) is approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or business of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction and the parties involved; provided, however, that if you do not engage in discussions with any such third party, you are not obligated to inform us of such contact; and provided further, that in the event that (i) you have indicated to the Company that you are no longer interested in pursuing a Possible Transaction or (ii) complied with a request to return or destroy Evaluation Material in accordance with Section 3(b) above, the requirements of this sentence shall no longer be operative and shall be of no further force or effect. Your “Deal Team” includes those of your officers, directors and employees who receive Evaluation Material or Discussion Information; provided, however, that the Company acknowledges that (i) in order to evaluate the Possible Transaction, you may supply Evaluation Material or Discussion Information to those members of your senior and executive management, finance committee and legal and compliance personnel customarily involved in the approval or participation in transactions such as the Possible Transaction (such individuals acting in such capacity, “Over The Wall Individuals”), and (ii) none of the Over The Wall Individuals shall be considered a member of your Deal Team for the purposes hereof. Notwithstanding anything to the contrary, nothing in this letter agreement shall prohibit you or your Informed Affiliates from disposing of any securities of the Company which it currently holds.
Appears in 1 contract
Standstill. The Buyer As of the date hereof, you hereby agrees represent and warrant to the Company that, during neither you nor any of your Representatives acting on your behalf, your affiliates, or any person with whom any of the foregoing may be deemed to be acting in concert with respect to you or your securities, owns any securities of the Company. You agree that, for a period commencing on of eighteen (18) months from the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this Agreement, unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate Board of Directors of the Buyer toCompany or any committee thereof, neither you nor any of your affiliates or subsidiaries or Representatives (nor any person acting on your behalf or on behalf of other persons acting in concert with you) will in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries or affiliates or assets of the Subsidiaries Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets of the Company Controlled Affiliates and its subsidiaries or any division or line of business of any thereofaffiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
Company or any of its affiliates; (iib) deposit any voting securities of the Company in a voting trust or subject voting securities of the Company to a voting agreement or any other arrangement or understanding with respect to the voting of such securities; (c) form, join or in any way participate in a “group” (within as defined under the meaning Securities Exchange Act of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇1934) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiid) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries Company; (e) disclose or Company Controlled Affiliates;
direct any person to disclose, any intention, plan or arrangement inconsistent with the foregoing; (ivf) take any action which would or would reasonably be expected to force the Company or you to make a public announcement regarding any of the types of matters set forth in clause this Section 7; or (ig) above; or
(v) enter into advise, assist or encourage or direct any discussions person to advise, assist or arrangements encourage any other persons in connection with any third party with respect to any of the foregoing. The Buyer further agrees You also agree during such period not to request (in any manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). Notwithstanding anything contained herein to the contrary, the restrictions set forth in this Section 7 shall automatically terminate and be of no further force and effect, without any action on the part of any party hereto, in the event that the Company publicly announces that it has entered into a definitive agreement with any person other than you or your controlled affiliates to consummate a transaction involving the acquisition of all or substantially all of the Company’s outstanding securities or assets.
Appears in 1 contract
Standstill. The Buyer hereby Each Stockholder agrees that, during that for a period from and ---------- after the period commencing on date hereof until the Closing Date and ending on earlier of (a) the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate termination of the Buyer toprovisions of Section 2.1 hereof in accordance with its terms or (b) the termination of this Agreement in accordance with its terms, in neither it nor any mannerof its Subsidiaries will, without the prior written consent of the other party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly (including indirectly, by directing purchase or causing otherwise, any other Person that is not the Buyer voting securities or a director, officer direct or Affiliate indirect rights to acquire any voting securities of the Buyer):
(i) effect Company or seek▇▇▇▇▇, offer or propose (whether publicly or otherwise) to effectas the case may be, or announce any intention to effect Subsidiary thereof, or cause any material amount of the assets of the Company or participate in ▇▇▇▇▇, as the case may be, or any Subsidiary or division thereof outside the ordinary course of business; (ii) make, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) directly or indirectly, any acquisition "solicitation" of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) to vote, or consents seek to vote advise or influence any Person with respect to the voting of, any voting securities of the Company;
(ii) formCompany or ▇▇▇▇▇, join as the case may be, for the purpose of changing or in any way participate in a “group” (within influencing the meaning of Section 13(d)(3) control of the Company or ▇▇▇▇▇, as the case may be; or (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction involving the Company or ▇▇▇▇▇, as the case may be, or its securities or assets; provided, -------- however, the foregoing restrictions shall not (x) preclude ▇▇▇▇▇ from (A) ------- acquiring the securities contemplated by Article IV of this Agreement and the shares of Common Stock of the Stock Purchase Agreement and the transactions contemplated hereby and thereby, including without limitation the transactions contemplated by the Initial Purchase Agreement and the Universal Agreement (each as defined in the Stock Purchase Agreement), (B) filing a Schedule 13D in connection with the transactions contemplated by the Stock Purchase Agreement or the Exchange Agreement among ▇▇▇▇▇, Fargo, Herve Caen and ▇▇▇▇ ▇▇▇▇ of even date herewith (the "Exchange Agreement"), (C) voting its shares of Common Stock within its ------------------ discretion on any matter submitted for a vote or consent of the Company's stockholders, (D) taking any other action contemplated by the Stock Purchase Agreement, or (E) purchasing shares of Company Stock pursuant to open-market transactions on a national securities exchange or in the over-the-counter market; provided, further, that the restrictions on ▇▇▇▇▇ in this Section 3.6 -------- ------- shall lapse automatically to the extent any Person other than ▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇ takes any action with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
matters described in clauses (ii) and (iii) otherwise actabove, alone or (y) preclude Fargo from (A) acquiring the shares of ▇▇▇▇▇ common stock pursuant to the Exchange Agreement or (B) filing a Schedule 13D in concert connection with others, to seek to control or influence the management, transactions contemplated by the board of directors Stock Purchase Agreement or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Exchange Agreement.
Appears in 1 contract
Standstill. The Buyer hereby From the date hereof until the third anniversary of the date of this letter, C▇▇▇ agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will notnot to, and will to cause any person or entity controlled by him not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or a director, officer or Affiliate prior written consent of the Buyer):
Parent: (i) effect in any manner acquire, agree to acquire or seekmake any proposal or offer to acquire, directly or indirectly, by purchase, merger, joint venture, business combination, tender offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) direct or indirect rights or options to acquire any securities (of Parent, the Company, any of their respective subsidiaries or beneficial ownership thereof) of any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of the Subsidiaries their respective subsidiaries or Company Controlled Affiliates ifaffiliates, after giving effect to or any such acquisitionassets of Parent, the Buyer and/or Company or their respective subsidiaries or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninetynon-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger traded real estate investment trust or other business combination involving pooled investment vehicle sponsored or advised by Parent, the Company or any of the Subsidiaries their respective subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, affiliates; (Cii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofmake, or (D) in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote, or consents seek to vote advise or influence any person or entity with respect to the voting of any voting securities of Parent, the Company;
(ii) form, join any of their respective subsidiaries or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of the Subsidiaries their respective subsidiaries or Company Controlled Affiliates;
affiliates; (iii) otherwise actenter into any arrangements, alone understandings or agreements (whether written or oral) with a third party, or advise, assist or encourage, any other third party in concert connection with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries foregoing; or Company Controlled Affiliates;
(iv) take request that Parent amend, waive or terminate any action which provision of this paragraph if such request would or would reasonably be expected to force the Company require Parent to make a public announcement regarding of the foregoing; provided, however, that the restrictions contained in this Section 11 (i) shall cease to apply upon the termination of the ARCP Merger Agreement in accordance with its terms (provided that such termination is not as a result of or otherwise related to any breach of this Section 11), and (ii) prior to the consummation of the ARCP Transaction shall not prohibit or otherwise restrict C▇▇▇’▇ exercise of his fiduciary duties under applicable law in his capacity as a director or officer of any of the types of matters set forth entities described in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)11.
Appears in 1 contract
Sources: Agreement and Plan of Merger (American Realty Capital Properties, Inc.)
Standstill. The Buyer hereby GSK agrees that, during the for a period commencing on the Closing Effective Date and ending expiring on the second annual fifth (5th) anniversary thereof (thereof, except pursuant to the “Standstill Period”), unless specifically invited terms of a specific written invitation in writing by the CompanyChief Executive Officer of Amgen, the Buyer or except as otherwise approved by Amgen’s Board of Directors, neither GSK nor any of its Affiliates will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or propose (whether publicly or otherwise) to effect, or cause or participate in in, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect effect, or cause or participate in, : (Ai) any acquisition of any securities Voting Securities (or beneficial ownership thereof) of Amgen or its Affiliates, or rights or options to acquire any securities Voting Securities (or beneficial ownership thereof) of the Company Amgen or its Affiliates, or any assets, indebtedness or businesses of the Subsidiaries Amgen or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent its Affiliates; (9.99%) of the shares of Common Stock then outstanding, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Amgen, any of the Subsidiaries or Company Controlled its Affiliates or any division assets of Amgen or line its Affiliates constituting a significant portion of business the consolidated assets of any thereof, Amgen and its Affiliates; (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company Amgen or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, its Affiliates; or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities Voting Securities of the Company;
Amgen or any of its Affiliates; (iib) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) Exchange Act), with respect to the securities Amgen or otherwise act in concert with any person in respect of the Company any Voting Securities of Amgen or any of the Subsidiaries or Company Controlled its Affiliates;
; (iiic) otherwise act, alone or in concert with othersothers (including by providing financing for another person), to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of Amgen or to obtain representation on the Company or any Board of the Subsidiaries or Company Controlled Affiliates;
Directors of Amgen; (ivd) take any action which would or would reasonably be expected to force the Company Amgen to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party Third Party with respect to any of the foregoing.
16.17.1. GSK and its Affiliates hereby acknowledge that they do not beneficially own any Voting Securities of Amgen or have other rights or options to acquire such Voting Securities (or beneficial ownership thereof). Notwithstanding any of the foregoing restrictions, nothing will prohibit GSK and its Affiliates from: (i) individually and collectively purchasing, beneficially owning or selling any Voting Securities that represent in the aggregate less than five percent (5%) of the outstanding Voting Securities of Amgen; and/or (ii) entering into and participating in any other existing and future commercial relationships and arrangements between Amgen and/or its Affiliates and GSK and/or its Affiliates in the ordinary course of business (i.e., collaboration, licensing, research, development, marketing and other comparable relationships).
16.17.2. GSK will be relieved of the foregoing standstill obligations in the event: (i) Amgen publicly announces that is has entered into a definitive agreement relating to a Change of Control of Amgen; (ii) Amgen publicly announces a formal decision of Amgen’s Board of Directors (or a committee thereof) to conduct a process to sell all or substantially all of the assets of Amgen and its Affiliates on a consolidated basis; provided, that the standstill obligations will be automatically reinstated if Amgen publicly announces a termination of such process; (iii) a Third Party commences a tender offer for more than fifty percent (50%) of the Voting Securities of Amgen and Amgen has publicly recommended acceptance of such tender offer; provided, that the standstill obligations will be automatically reinstated in the event such tender offer is terminated; and (iv) upon the completion of a Change of Control of Amgen.
16.17.3. The Buyer further agrees that it shall not, and shall provisions of this Section 16.17 (Standstill) will not permit be construed or interpreted to prohibit GSK in any director, officer manner from making any bid or Affiliate offer to license or acquire rights to any asset(s) of Amgen (other than substantially all of the Buyer toassets of Amgen and its Affiliates) as opposed to acquiring securities of Amgen if such bid or offer is solicited from GSK by Amgen. The foregoing standstill obligations will not prohibit GSK from confidentially communicating to Amgen’s Chief Executive Officer or Chairman of the Board of Directors a non-public indication of GSK’s interest in pursuing a potential transaction involving Amgen in such a manner that would not require Amgen to make public disclosure. Neither the ownership nor purchase by an employee benefit plan of GSK or GSK’s Affiliates in any diversified index, during the Standstill Periodmutual or pension fund managed by an independent advisor, which fund in turn holds, directly or indirectly, publicly request the Company securities of Amgen will be deemed to be a breach of GSK’s standstill obligations under this Section 16.17 (Standstill). If GSK, or its directorsGSK’s Affiliates, officersacquires securities of, employees or agents) other ownership interest in, a Third Party that directly or indirectly owns any securities or property of Amgen, such acquisition will not be deemed to amend or waive any provision be a breach of GSK’s standstill obligations under this Section 16.17 (Standstill), subject to GSK’s compliance with all other terms of this Section 4(lAgreement and provided that, if GSK and its Affiliates then beneficially own in the aggregate five percent (5%) or more of the outstanding Voting Securities of Amgen, GSK will notify Amgen thereof promptly following such acquisition and will dispose of Voting Securities of Amgen, in sufficient number so that GSK and its Affiliates no longer beneficially own Voting Securities of Amgen that represent in the aggregate five percent (including this sentence)5%) or more of the outstanding Voting Securities of Amgen, in orderly market transactions within one hundred twenty (120) days after such acquisition.
Appears in 1 contract
Standstill. (a) The Buyer hereby agrees thatPurchasers, during together with any 13d Group of which it is a part, but excluding any investment company or affiliated money management advisor registered under the period commencing Investment Company Act of 1940, as amended, or the Investment Advisers Act of 1940, as amended, agree that they shall not Beneficially Own any Voting Stock or Common Stock of the Company other than (i) the Shares, (ii) the Underlying Shares, (iii) all Common Stock and PS issued as a dividend on the Closing Date and ending on the second annual anniversary thereof PS (the “Standstill Period”"Dividend Shares"), unless specifically invited (iv) Capital Stock of the Company acquired pursuant to Section 5.14 or Section 5.15 and (v) shares of Common Stock, in writing addition to those described in clauses (i), (ii), (iii) or (iv) above, not exceeding five percent (5%) of the issued and outstanding Common Stock (calculated at the date of determination), provided that in no event shall the Purchasers Beneficially Own shares of Capital Stock of the Company that would be entitled to cast thirty five percent (35%) or more of the aggregate votes entitled to be cast under ordinary circumstances with respect to the election of directors of the Company, except as such ownership is a result of (v) any repurchase of Capital Stock by the Company, (w) the Buyer will notreceipt, and will not permit any directorexercise or conversion of rights or other securities, officer or Affiliate including the Dividend Shares, issued in respect of the Buyer toPS, the Warrants or the Underlying Shares, (x) a Business Combination between the Company and another Person approved by the Board and in which any mannerPurchaser owns, directly or indirectly (including by directing or causing indirectly, any Capital Stock of such other Person that is not prior to the Buyer or a director, officer or Affiliate approval by the Board of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate insuch Business Combination, (Ay) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) Capital Stock of the Company acquired pursuant to Section 5.14 or any (z) Capital Stock of the Subsidiaries or Company Controlled Affiliates ifacquired as a result of the election by the Company under the Series C Warrants to have such Warrants exercisable for shares of Common Stock.
(b) The Purchasers shall not knowingly, after giving effect due inquiry, sell any shares of Common Stock or the Warrants to any Person or 13d Group which would, immediately following such acquisitionsale, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or Beneficially Own in the aggregate, would beneficially own more than nine and ninety-nine one hundredths excess of ten percent (9.9910%) of the shares of issued and outstanding Voting Stock or Common Stock then outstandingof the Company; provided that, if such Person or 13d Group is known to the Purchasers to be a competitor of the Company in the oil and gas exploration and production industry, the foregoing restriction shall apply if such Person or 13d Group would, immediately following such sale, Beneficially Own in excess of five percent (5%) of the issued and outstanding Voting Stock or Common Stock of the Company.
(c) If the Purchasers are not in violation of this Section 5.10, the restrictions set forth in Section 5.10(b) shall not apply to any transfer of Warrants or Common Stock (i) to any partner or wholly-owned subsidiary of any Purchaser that agrees to be bound by the provisions this Section 5.10 as if it were a Purchaser for purposes of this Section, (Bii) any upon consummation of a business combination or similar transaction involving the Company, or an agreement relating thereto being approved by the Board, (iii) pursuant to a tender or exchange offeroffer approved by, merger or other business combination involving recommended by, the Company Board or any pursuant to which the Board has formally expressed no opinion and remains neutral toward such tender or exchange offer subject to the provisions of Rule 14d-9 promulgated under the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofExchange Act, (Civ) any recapitalizationpursuant to a distribution by a Purchaser, restructuringsubstantially pro-rata, liquidation, dissolution or other extraordinary transaction with respect to the Company or any equity owners of the Subsidiaries or Company Controlled Affiliates or any division thereofsuch Purchaser, or (Dv) pursuant to a bona fide underwritten public offering in which the Purchasers use reasonable efforts to obtain an agreement by the underwriters to make a good faith effort to prevent the sale to any “solicitation” one Person of “proxies” more than five percent (as such terms are used in the proxy rules 5%) of the SEC) issued and outstanding Voting Stock or consents to vote any voting securities Common Stock of the Company;.
(d) The restrictions set forth in Section 5.10(b) shall terminate upon the first to occur of (i) a Change of Control, (ii) formthe redemption by the Board of rights granted under the EEX Rights Agreement or any similar agreement subsequent entered into or adopted by the Company (each, join a "Rights Agreement"), and (iii) the Board's permitting, by amendment or waiver of any Rights Agreement or otherwise, of any Non-financial Person to Beneficially Own twenty percent (20%) or more, or any Financial Person to Beneficially Own more than thirty-five percent (35%), of the Voting Stock of the Company.
(e) In connection with any matter in any way participate in which the Purchasers both (i) have voting rights which are counted together with the voting rights of the Voting Stock or Common Stock of the Company and (ii) do not have voting rights as a “group” holder of the Shares counted separately as a class, the number of votes which the Purchasers shall be entitled to cast at their sole discretion shall not exceed one vote fewer than twenty percent (within the meaning of Section 13(d)(320%) of the ▇▇▇▇ ▇▇▇aggregate number of votes entitled to be cast thereon by the Common Stock and all other classes of Capital Stock of the Company entitled to vote on such matter, less the votes entitled to be cast by any non-Purchaser constituting a member of any 13d Group of which Purchaser is a member. If Purchaser would otherwise be entitled to cast votes in excess of the number calculated pursuant to the previous sentence, then the balance of such votes shall be cast for, against or abstain in respect of such matter in the same proportion as the votes cast for, against or abstain by all other shareholders of the Company.
(f) The Purchasers shall not participate in or be a member of any 13d Group (other than a 13d Group composed solely of themselves and their affiliates) with respect to the securities Voting Stock or Common Stock of the Company.
(g) The Purchasers shall be prohibited from seeking, proposing or making any public statement regarding a tender offer or Business Combination involving the Company. The Purchasers shall use all reasonable efforts to promptly notify the Company if any of the Purchasers' Board representative, observer or alternate is approached with respect to or made aware of a proposal regarding any of the foregoing.
(h) The Purchasers shall not be a participant in a proxy solicitation with respect to the Capital Stock of the Company or any subject its shares of Capital Stock of the Subsidiaries Company to voting trusts or Company Controlled Affiliates;similar voting agreements.
(i) All of the provisions of this Section 5.10 shall terminate and be of no further force or effect upon the earliest to occur of (i) any date on or after the tenth anniversary of the Closing on which the Market Price per share of the Common Stock is at or below twelve dollars ($12.00) (provided that such price shall be adjusted in same manner as the Exercise Price as defined in the Warrants), (ii) any date on which the Purchasers and any 13d Group of which they are a member shall Beneficially Own less than ten percent (10%) of the issued and outstanding Common Stock of the Company, (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board a Change of directors or the policies Control of the Company or any type described in clause (a) of the Subsidiaries or Company Controlled Affiliates;
definition thereof, (iv) take a redemption by the Board of any action which would or would reasonably be expected to force the Company to make a public announcement regarding rights granted under any of the types of matters set forth in clause (i) above; or
Rights Agreement, and (v) enter into the Board permitting by amendment or waiver of any discussions Rights Agreement or arrangements otherwise, any Non-financial Person to Beneficially Own twenty percent (20%) or more, or any Financial Person to Beneficially Own more than thirty-five percent (35%), of the Voting Stock of the Company.
(j) The Board shall be entitled to waive in writing the Purchasers' compliance with any third party with respect to any or all of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision provisions of this Section 4(l) (including this sentence)5.10.
Appears in 1 contract
Sources: Purchase Agreement (Eex Corp)
Standstill. The Buyer hereby Novartis agrees that, during the for a period commencing on the Closing Effective Date and ending on [***] after the second annual anniversary thereof (the “Standstill Period”)Effective Date, unless specifically invited in writing to do so by Incyte, Novartis and each of its Affiliates (as that term is defined in Rule 12b-2 under the Company, Securities Exchange Act of 1934 (the Buyer will not, and “Exchange Act”) will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect effect, or seek, offer or propose to effect (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of (A) any securities Voting Stock of Incyte, (B) direct or beneficial ownership thereof) or indirect rights or options to acquire any Voting Stock of Incyte, or (C) assets or securities (or beneficial ownership thereof) of the Company Incyte or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any merger, consolidation, tender or exchange offer, merger or other business combination involving the Company Incyte or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any Affiliate thereof, (Ciii) any restructuring, recapitalization, restructuring, liquidation, dissolution or other extraordinary similar transaction with respect to the Company Incyte or any of the Subsidiaries or Company Controlled Affiliates or any division Affiliate thereof, or (Div) any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the proxy rules of the SECExchange Act) or consents with respect to vote any voting securities Voting Stock of Incyte, any “election contest” (as such term is defined or used in Rule 14a-11 of the CompanyExchange Act) with respect to Incyte, or any demand for a copy of Incyte’s stock ledger, list of its stockholders, or other books and records;
(iib) form, join or in any way join, participate in a or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) (“13D Group”) with respect to the securities any Voting Stock of the Company or any of the Subsidiaries or Company Controlled AffiliatesIncyte;
(iiic) otherwise actact (other than as contemplated under this Agreement), alone or in concert with othersothers (including by providing financing for another party), to seek or offer to control or influence influence, in any manner, the management, the board Board of directors Directors or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesIncyte;
(ivd) take any action which would or would reasonably be expected to that might force the Company Incyte to make a public announcement regarding any of the types of matters set forth in clause (iSection 11.6(a) above; or;
(ve) enter into any discussions make (publicly or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall notIncyte, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees employees, agents or agentssecurity holders, directly or indirectly) any request or proposal to amend amend, waive or waive terminate any provision of this Agreement or any inquiry or statement relating thereto; or
(f) instigate, encourage or assist any Third Party to do any of the foregoing; provided that Novartis and its Affiliates may acquire, hold or sell, through their respective treasury departments, an aggregate amount not to exceed [***] of the voting power represented by Incyte’s Voting Stock solely for the purposes of investment in the ordinary course of business (so long as any decision to make such acquisition or sale is in compliance with United States securities law), [***] and provided further that the restrictions set forth in this Section 4(l11.6 shall terminate immediately if: (i) a Person or 13D Group not including Novartis or its Affiliates [***], either (x) Incyte publicly announces its willingness to consider such proposal or alternative proposals for a transaction described in clause (ii)(A) or (B) below, or (y) the Board of Directors of Incyte determines to engage in negotiations with such Person or 13D Group or any other party other than Novartis or its Affiliates with respect to a transaction described in clause (ii)(A) or (B) below [***], (ii) Incyte or its Affiliates enters in to a letter of intent or definitive agreement with any party other than Novartis or its Affiliates (A) [***]; or (B) which would result in all or substantially all of Incyte’s assets being sold to any Person or 13D Group not including Novartis or its Affiliates; (iii) Incyte announces its determination to pursue (w) a transaction described in clause (ii)(A) or (B) above, (x) [***] that represents more than [***] of the voting power of the outstanding Voting Stock of Incyte, (y) the sale, transfer or disposition of all or substantially all of Incyte’s assets or [***] with any party other than Novartis or its Affiliates; [***]; or (vi) the sale, transfer or disposition to [***]; provided, however, that any termination pursuant to clause (i)(B) above shall not permit Novartis or its Affiliates to take any action described in Section 11.6(a)(iv), Section 11.6(b) or Section 11.6(f). In the event that the transactions contemplated by clauses (i), (ii) and/or (iii) shall have been terminated or abandoned, and such termination or abandonment is demonstrable by a press release issued by Incyte (or, in the case of clause [***]), then this Section 11.6 shall again be applicable for the remainder of the period specified herein. Further, nothing in this Section 11.6 shall obligate Novartis or its Affiliates to cause Novartis’ or its Affiliates’ advisors (including financial advisors, attorneys, accountants and consultants) to comply with the terms of this sentence)Section 11.6 when acting on their own behalf or on behalf of Third Parties.
Appears in 1 contract
Standstill. The Buyer hereby So long as a Stockholder owns shares of Restricted Stock or Convertible Stock (or has the right to acquire Restricted Stock or Convertible Stock), such Stockholder agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof unless (the “Standstill Period”), unless A) specifically invited or otherwise approved in writing by the Company, Board or (B) to the Buyer will not, and will not permit any director, officer extent that such Stockholder has a right to designate a member of the Board or has a representative or Affiliate on the Board, as necessary for such Board member to discharge his/her duties as a Board member, neither such Stockholder nor any of the Buyer to, its Related Persons will in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) of the Company or any of its Subsidiaries (except through the proper exercise of preemptive rights granted hereunder), or rights or options to acquire any securities (or beneficial ownership thereof) (if such transaction would not be permitted by Section 9(e) below), or any assets, indebtedness or businesses of the Company or any of the its Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingAffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries or Company Controlled Affiliates or any division assets of the Company or line the Subsidiaries or Affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its Subsidiaries or Affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division thereofAffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or written consents with respect to vote any voting securities of the Company;Company or any of its Affiliates. For the purposes of this Section 9(a), the term “Affiliates” means Affiliates of the Company primarily engaged in the hospitality, lodging and/or gaming industries.
(iib) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(313(d) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the Company where such group seeks to acquire any equity securities of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors Board or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliatesits Subsidiaries;
(ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (iSection 9(a) above;
(e) own more than twelve percent (12%) of the issued and outstanding Common Stock, unless such ownership arises as a result of any action not taken by or on behalf of such Stockholder or a Related Person of such Stockholder; or
(vf) enter into any discussions request that the Company or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Periodits representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) 9 (including this sentenceclause (f)). Each Stockholder further agrees that, if at any time during such period, such Stockholder is approached by any third party concerning its participation in any transaction or proposed transaction involving the acquisition of all or any portion of the assets, indebtedness or securities of, or any business of, the Company or any of its Subsidiaries, such Stockholder will promptly inform the Company of the nature of such transaction and the parties involved. Notwithstanding anything in this Section 9 to the contrary, ▇▇▇▇▇▇▇, Sachs & Co. and its Affiliates (other than any such Person that owns Restricted Stock) may engage in any brokerage, investment advisory, financial advisory, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage and other similar activities (including purchasing securities, assets or indebtedness of the Company or any of its Subsidiaries or Affiliates, and including any activities conducted by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or its Affiliates’ portfolio companies), provided that, so long as ▇▇▇▇▇▇▇, Sachs & Co. or any its Affiliates owns shares of Restricted Stock (i) the Investment Banking Division of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. will not, without the Company’s prior written consent, act as financial advisor to any Person for the purpose of such Person (A) making a proposal to acquire (1) control of the Company or any of its Subsidiaries or (2) any material assets of the Company and Subsidiaries (taken as a whole), (B) taking any other action to acquire (1) control of the Company or any of its Subsidiaries or (2) any material assets of the Company and its Subsidiaries (taken as whole), or (C) becoming an aggregator (meaning, a Person who is required to file a Schedule 13D (or successor form) under the Exchange Act disclosing an intent other than for investment) of the Company’s securities and (ii) none of ▇▇▇▇▇▇▇ Sachs & Co. or any of its Affiliates (excluding portfolio companies in which ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and/or any of its Affiliates own less than a majority of the voting securities) will, without the prior written consent of the Company, solicit, encourage, otherwise stimulate or participate in any way (or direct any of their portfolio companies to solicit, encourage, otherwise stimulate or participate in any way) in (X) making a proposal to acquire (1) control of the Company or any of its Subsidiaries or (2) any material assets of the Company and its Subsidiaries (taken as a whole), (Y) taking any other action to acquire (1) control of the Company or any of its Subsidiaries or (2) any material assets of the Company and its Subsidiaries (taken as a whole), or (Z) becoming an aggregator (meaning, a Person who is required to file a Schedule 13D (or successor form) under the Exchange Act disclosing an intent other than for investment) of the Company’s securities (provided that nothing herein shall restrict ▇▇▇▇▇▇▇, Sachs & Co. and its Affiliates from filing a Schedule 13D in connection with the ownership of Restricted Stock or from amending such Schedule 13D).
Appears in 1 contract
Standstill. (a) The Buyer hereby agrees thatInvestor Parties and any Other Holders, during as applicable, agree (x) so long as the period commencing Investor Parties or Other Holders have record and beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Conversion Shares representing more than five percent (5%) of the outstanding Common Stock of the Company or (y) the Investor Parties have the right to nominate a director to the Board of Directors (or any person so nominated continues to serve on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the CompanyBoard of Directors) pursuant to Section 2.1, the Buyer will not, Investor Parties and Other Holders will not at any time, nor will it cause or permit any director, officer or Affiliate of the Buyer its Affiliates to, in any manner, directly or indirectly : (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any its Subsidiaries, other than as a result of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, Rights Offering contemplated by the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingPurchase Agreement, (Bii) any tender or exchange offer, merger merger, consolidation, recapitalization or other business combination disposition involving the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division or line assets of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any its Subsidiaries constituting a significant portion of the Subsidiaries or consolidated assets of the Company Controlled Affiliates or any division thereofand its Subsidiaries, or (Diii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
Company or any of its Affiliates; (iib) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of the Company or any to obtain representation on the Board of the Subsidiaries or Company Controlled Affiliates;
Directors except in accordance with Section 2.1; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees ; it being understood that it nothing in this Section 2.4 shall not(x) restrict or prohibit the Investor Nominee or Investor Nominees, as applicable, from taking any action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary to fulfill his or her fiduciary duties as a member of the Board of Directors or (y) restrict the Investor Parties’ or Other Holders’ acquisition of the Notes or Common Stock issuable upon conversion of the Notes in connection with the Rights Offering contemplated by the Purchase Agreement (including the accretion of dividends thereon and any dividends payable in any other security), in each case, in accordance with the terms of this Agreement and the Purchase Agreement; provided, further, that the restrictions set forth in clause (a)(i) above shall not apply (i) with respect to acquisitions of Common Stock consented to in writing by the Board of Directors, or (ii) following the public announcement of a tender or exchange offer, merger, consolidation, recapitalization or other disposition of all or substantially all of the Company’s stock or assets, in each case, that has been approved by the Board of Directors, and the restrictions set forth in this Section 2.4 shall not permit any director, officer or Affiliate apply (iii) following the date the Company commences proceedings under Title 11 of the Buyer toUnited States Bankruptcy Code or any other similar insolvency laws. Upon closing of the First Tranche Investment contemplated by the Purchase Agreement, during the Standstill Periodrestrictions set forth in Section 6 of that certain Confidentiality Agreement, directly or indirectlydated as of March 7, publicly request 2022, by and between the Company and Patient Square Capital, L.P. (the “Confidentiality Agreement”), shall terminate and cease to apply. Notwithstanding the foregoing, it is understood and agreed that the Investor Parties shall not be prohibited from entering into an agreement and having confidential discussions with legal, accounting or its directors, officers, employees or agents) to amend or waive financial advisors for the limited purposes of evaluating any provision of the transactions contemplated by this Section 4(l2.4, and the Investor Parties and/or its Affiliates may initiate private discussions with the Company that could result in a negotiated transaction otherwise prohibited by this Section 2.4; provided, however, that, in each case, any such discussions under this sentence are not reasonably be expected to require public disclosure.
(b) (including this sentence)The provisions in Section 2.4(a) will terminate and cease to have effect if, following the Rights Offering contemplated by the Purchase Agreement, the Investor Parties acquire control of a majority of the voting power of the Company.
Appears in 1 contract
Standstill. The Buyer Investor hereby agrees that, during that for a period of 12 months following the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the CompanyClosing, the Buyer will Investor shall not, and will shall cause its Affiliates not permit any directorto, officer directly or Affiliate of the Buyer toindirectly, in any manner, directly or indirectly unless specifically agreed to in writing by the Company (including by directing or causing any other Person that is not collectively, the Buyer or a director, officer or Affiliate of the Buyer“Standstill Restrictions”):
(a) (i) effect acquire or seekagree, offer or propose (whether publicly or otherwise) to effectoffer, or announce any an intention to effect acquire, propose to acquire or cause enter into any arrangement or participate in or in any way assistundertaking to acquire, facilitate or encourage any other Person to effect or seekownership (including, offer or propose (whether publicly or otherwisebut not limited to, beneficial ownership) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) significant portion of the assets of the Company or any controlled Affiliate thereof, or any business of the Subsidiaries Company or Company Controlled Affiliates ifany controlled Affiliate thereof, after giving effect or (ii) acquire or agree, offer, announce an intention to acquire, propose to acquire or enter into any such acquisitionarrangement or undertaking to acquire, the Buyer and/or (x) any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any controlled Affiliate thereof by means of the Subsidiaries any exchange offer or Company Controlled Affiliates;
tender offer, or (iiiy) otherwise actany rights, alone options or in concert with others, to seek to control other securities convertible into or influence the management, the board of directors exercisable or the policies exchangeable for any securities of the Company or any controlled Affiliate thereof or any obligations measured by the price or value of any securities of the Subsidiaries Company or any controlled Affiliate, including without limitation any swaps or other derivative arrangements (“Derivative Securities”), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such party) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to beneficial ownership, and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise;
(b) make, effect, initiate, offer, seek, cause or propose any take-over bid, tender offer, merger, consolidation, exchange offer, recapitalization, reorganization, business combination, liquidation, dissolution or similar transaction, or any other extraordinary transaction, with or involving the Company Controlled or any controlled affiliate thereof, or involving the Common Stock or any other securities or assets of the Company or any controlled affiliate thereof;
(c) seek or propose to obtain representation on the Board of Directors, or solicit, make, effect, initiate, cause, or, in any way, participate in the solicitation of, any proxies or consents with respect to any securities of the Company (including shares of Common Stock) or any of its controlled Affiliates;
(ivd) take form, join, or participate in or otherwise encourage the formation of any action which would or would reasonably be expected group with respect to force any securities of the Company to make a public announcement regarding (including shares of Common Stock) or any of the types of matters set forth in clause (i) above; orits controlled Affiliates;
(ve) enter into any discussions discussions, negotiations, arrangements or arrangements understandings with any third party with respect to any of the foregoing. The Buyer further agrees ; or
(f) make any public disclosure, or take any action that it shall notcould be reasonably expected to require the Company to make a public announcement, and shall not permit regarding any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)foregoing.
Appears in 1 contract
Standstill. The Buyer hereby agrees thatExcept as otherwise provided in this Agreement or the Certificate of Designations, during until the period commencing on later of (i) one (1) year after the Closing Date and ending on (ii) the second annual anniversary thereof (date the “Standstill Period”)Purchasers are no longer entitled to designate one non-voting observer to the Board of Directors pursuant to Section 4.1, unless specifically invited in writing by without the prior written consent of the Company, the Buyer will not, and Purchasers will not permit at any directortime, officer or Affiliate nor will it cause any of the Buyer its Affiliates to, in any manner, directly or indirectly : (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or publicly propose (whether publicly or otherwise) 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 person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any equity securities (or beneficial ownership thereof) or rights or options to acquire any equity securities (or beneficial ownership thereof), or any securities convertible into or exchangeable for any such equity securities (or beneficial ownership thereof) of the Company or any of Company, other than by the Subsidiaries or Company Controlled Purchasers and their Affiliates if, after giving effect in a transaction pursuant to any such acquisition, which the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, Purchaser and their Affiliates would beneficially own no more than nine and ninety-nine one hundredths five percent (9.995%) in the aggregate of the outstanding shares of the Company’s Common Stock (excluding conversion of the shares of Common Series A Preferred Stock and any Conversion Shares then outstanding, held by the Purchasers or such Affiliates) after such transaction or any exercise of the Purchasers’ rights to acquire New Securities pursuant to Article VI; (Bii) any tender or exchange offer, merger or other business combination involving the Company or any its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (b) make, participate in or Company Controlled Affiliates encourage any “solicitation” (as such term is used in the proxy rules of SEC) of proxies or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction consents with respect to the Company election or removal of directors or any of the Subsidiaries other matter or Company Controlled Affiliates or any division thereof, or proposal; (Dii) any become a “solicitation” of “proxiesparticipant” (as such terms are term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents consents; (iii) seek to vote advise, encourage or influence any Person with respect to the voting or disposition of any of the securities of the Company;
; or (iiiv) forminitiate, join encourage or participate, directly or indirectly, in any way participate in a “groupvote no,” “withhold” or similar campaign; (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iiic) otherwise act, alone or in concert with others, act to seek representation on or to control or influence the management, the board of directors management or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries Company; (d) publicly submit any shareholder proposal to the Company, or (e) publicly propose any change of control or other material transaction involving the Company, (w) restrict or prohibit the making or submission to the Company Controlled Affiliates;
(iv) take and/or the Board of Directors any action which proposal by the Purchaser Parties that would or would not reasonably be expected to force result in the Company being obligated to publicly disclose such proposal, (x) restrict or prohibit participation in rights offerings made by the Company to make a public announcement regarding any all holders of Common Stock, (y) restrict or prohibit the Purchasers’ acquisition, disposition, sale or Transfer of the types Purchased Shares (including the accretion of matters set forth dividends thereon and any dividends payable in clause (iany other security) above; or
(v) enter into any discussions or arrangements with any third party with respect to any Conversion Shares issuable upon conversion of the foregoing. The Buyer further agrees that it shall notPurchased Shares, and shall not permit any directorin each case, officer or Affiliate of in accordance with the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision terms of this Section 4(lAgreement and the Certificate of Designations or (z) (including this sentence)limit or restrict any Transfer pursuant to a Permitted Loan or any foreclosure thereunder or Transfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Standstill. The Buyer hereby Eastbourne agrees that, during for a period of five (5) years from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date hereof, unless specifically invited in writing by the Company, the Buyer will it shall not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer)::
(ia) effect or seekmake, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or initiate, cause or participate in (i) any acquisition of Beneficial Ownership of the Common Stock resulting in an increase in its aggregate Beneficial Ownership of the Common Stock to a number of shares representing 20% or in more of the outstanding shares of the Common Stock at any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate intime without the prior written consent of the Company, (Aii) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) assets of the Company or any assets of any subsidiary or other affiliate of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingCompany, (Biii) any tender or offer, exchange offer, merger or other merger, business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofcombination, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any subsidiary or other affiliate of the Subsidiaries Company, or involving any securities or assets of the Company Controlled Affiliates or any division thereofsecurities or assets of any subsidiary or other affiliate of the Company, other than (x) any tender of shares of the Common Stock in an issuer tender offer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or a third party tender offer under the Exchange Act that is recommended by a majority of the current directors of the Company (the “Current Directors”), directors appointed or elected upon the recommendation of the current directors (“Subsequent Directors”) and directors appointed or elected upon the recommendation of the Current Directors and Subsequent Directors (collectively, the “Incumbent Board”) or (Dy) any merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction not proposed or initiated, directly or indirectly, by Eastbourne that is recommended by a majority of the Incumbent Board, (iv) any “solicitation” of “proxies” or stockholder consents (as such terms are used in the proxy rules defined under Regulation 14A of the SECExchange Act) or consents with respect to vote any voting securities of the Company or any of its subsidiaries or (v) any stockholder proposals or recommendations or nominations for election to the Board of Directors that would require disclosure in the Company’s proxy statement prepared in connection with its annual meetings of stockholders; provided that (subject to Section 2 hereof) Eastbourne may vote the Eastbourne Shares on proposals or nominations that Eastbourne did not submit for inclusion in the Company’s proxy statement;
(iib) 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 the any securities of the Company or any of the Subsidiaries or Company Controlled Affiliatesits subsidiaries;
(iiic) otherwise act, whether alone or in concert with others, to seek to control or influence propose to the managementCompany, the board of directors or the policies any subsidiary of the Company or any of their stockholders any merger, business combination, restructuring, recapitalization or similar transaction to or with the Subsidiaries Company or Company Controlled Affiliatesany of its subsidiaries or otherwise seek or propose to influence or control the Company’s management or policies;
(ivd) take any action which would or would reasonably be expected to force that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(i) above; ora)” or “(c)” of this sentence;
(ve) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)” or “(d)” of this sentence;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) enter into any discussions discussions, negotiations, arrangement or arrangements agreement with any third party with respect other Person relating to any of the foregoing. The Buyer further agrees ; or
(h) request or propose that it shall not, and shall not permit the Company or any director, officer or Affiliate of the Buyer toCompany’s representatives amend, during waive or consider the Standstill Periodamendment or waiver of any provision set forth in this Section 4. Notwithstanding anything to the contrary in Section 4(a) of this Agreement, (i) Eastbourne may tender Eastbourne Shares in any tender offer made to the holders of the Company’s common stock and (ii) Eastbourne may vote any Eastbourne Shares other than the Excess Shares in their exclusive discretion on any merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction; provided that in the case of clause (i) and (ii) Eastbourne has not directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive indirectly taken any provision of action prohibited under in this Section 4(l) (including this sentence)4 other than passively tendering or voting the Eastbourne Shares or publicly announced its intention to so tender or vote the Eastbourne Shares.
Appears in 1 contract
Standstill. The Buyer hereby agrees that(a) Each Seller agrees, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)) from the date hereof until the earliest of (1) the termination of this Agreement in accordance with its terms, unless specifically invited in writing by (2) following the CompanyClosing Date, the date on which the Sellers and their respective Affiliates no longer own or hold any shares of Buyer Common Stock, and (3) the third (3rd) anniversary of the Closing, that it and its Affiliates will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or a director, officer or Affiliate prior written consent of the Buyer)::
(i) other than the acquisition of the shares of Buyer Common Stock included in the Stock Consideration hereunder, effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company Buyer or any of its Affiliates, provided, however, that Sellers and their Affiliates may acquire shares of Buyer Common Stock that Sellers or their Affiliates acquire from Buyer in connection with any stock split or subdivision of shares of Buyer Common Stock that are already held by them at the Subsidiaries or Company Controlled Affiliates if, after giving effect to any time of such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (Cii) any recapitalization, stock dividend, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company Buyer or any of the Subsidiaries or Company Controlled its Affiliates or any division thereof, or (Diii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of Buyer or any of its Affiliates or consent to any action from any holder of any voting securities of Buyer or any of its Affiliates or seek to advise or influence any Person with respect to the Companyvoting of or the granting of any consent with respect to any voting securities of Buyer;
(ii) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3Exchange Act) of in connection with the ▇▇▇▇ ▇▇▇) with respect to the voting securities of the Company Buyer or otherwise act in concert with any Person in respect of the Subsidiaries or Company Controlled Affiliatesany such securities;
(iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, board of directors or policies of Buyer or to obtain representation on the board of directors or the policies of the Company Buyer or any of the Subsidiaries or Company Controlled Affiliatescommittee thereof;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The ;
(v) request that Buyer further agrees that it shall not, and shall not permit or any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to Representatives amend or waive any provision of this Section 4(l5.16, or make any public announcement with respect to the restrictions of this Section 5.16, or take any action which would reasonably be expected to require Buyer to make a public announcement regarding any potential transaction; or
(vi) advise, assist or encourage, or direct any Person to advise, assist or encourage any other Person or Persons, in connection with any of the foregoing.
(including b) Each Seller acknowledges that Buyer would be irreparably injured by a breach of this sentence)Section 5.16 by a Seller, that monetary remedies would be inadequate to protect Buyer against any actual or threatened breach or continuation of any breach of this Section 5.16. In the event of a breach or threatened breach of this Section 5.16, Buyer shall be entitled, without the posting of a bond, to seek an injunction restraining such breach or threatened breach. Nothing herein contained shall be construed as prohibiting Buyer from pursuing any other remedy available to it for such breach or threatened breach.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ares Commercial Real Estate Corp)
Standstill. The Buyer hereby agrees Magnetar Investors and the White Hat Investors, severally and not jointly, agree that, during until the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate earliest of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect January 22, 2026, (ii) the occurrence of any Insolvency Proceeding (as defined in the Existing Credit Agreement) by or seek, offer against the Company or propose any of its Subsidiaries and (whether publicly or otherwiseiii) to effectthe occurrence of (1) an Event of Default (as defined in the Existing Credit Agreement), or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage similar event under any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) indebtedness for borrowed money of the Company or any Subsidiary thereof incurred as part of a refinancing of, or substitution or exchange for, the indebtedness for borrowed money under the Existing Credit Agreement, in each case, for the avoidance of doubt, after taking into account any applicable cure periods contained in the Existing Credit Agreement or the applicable credit agreement); or (2) the acceleration of the Subsidiaries maturity of the obligations under the Existing Credit Agreement (or under any other indebtedness for borrowed money of the Company Controlled Affiliates ifor any Subsidiary thereof incurred as part of a refinancing of, or in substitution or exchange for, the indebtedness for borrowed money under the Existing Credit Agreement) and such acceleration has not been rescinded by the requisite holders of such indebtedness for borrowed money within seven (7) Business Days following such acceleration (the earliest of (i), (ii) and (iii), the “Standstill Termination Date”), without the prior consent, invitation, or authorization of the Company or the Company’s Board of Directors, not to:
(a) other than pursuant to clause (b) below, acquire or agree to acquire, whether by private or open market purchase, a block trade, or a tender or exchange offer, beneficial ownership of, or any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any equity securities or direct or indirect rights to acquire any equity securities of the Company, any securities convertible into or exchangeable for any such equity securities, in each case solely to the extent that, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Memberacquisition or transaction, either individually or (i) the Magnetar Investors, taken together with their respective Affiliates, would beneficially own (as determined in accordance with Rule 13d-3 under the Exchange Act), in the aggregate, greater than 19.99% of the then outstanding Common Stock or (ii) the White Hat Investors, taken together with its respective Affiliates, would beneficially own more (as determined in accordance with Rule 13d-3 under the Exchange Act), in the aggregate, greater than nine and ninety-nine one hundredths percent 9.99% of the then outstanding Common Stock;
(9.99%b) [Reserved];
(c) (i) make, publicly support or become a “participant” in (as such term is defined or used under the Exchange Act, other than solely by voting shares or complying with applicable reporting requirements under Section 13(d) of the shares Exchange Act) or by virtue of Common Stock then outstandinghaving a representative serving on the Company’s Board of Directors, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as such terms are used in the proxy rules of the SECSEC (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) or consents promulgated under the Exchange Act), to vote any voting securities of the Company or any securities convertible or exchangeable into or exercisable for any such voting securities, (ii) request, call or seek to call (or, for the avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), other than of or by the holders of the Series B-3 Preferred Stock voting as a separate class for the purpose of voting or consenting to the matters on which the holders of Series B-3 Preferred Stock have the right to vote or consent to under Section 9 of the Certificate of Designations, (iii) initiate any stockholder proposal for action by the Company’s stockholders, (iv) except as contemplated by this Agreement and the Certificate of Designations, seek representation on the Board of Directors, or (v) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing prohibited actions set forth in clauses (i) through (iv); provided that nothing in this clause (c) shall restrict the voting by proxy in the ordinary course of business;
(iid) form, join or in make any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) public announcement with respect to the securities of the Company to, offer or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or that would reasonably be expected to force require the Company to make a public announcement regarding any (in each case with or without conditions, but other than a public announcement in respect of the types implementation of matters set forth proposals, actions or transactions approved by the Company), either alone or in concert with others, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities of the Company or any Subsidiary of the Company or any other extraordinary transaction involving the Company or any Subsidiary of the Company (it being understood that the foregoing shall not restrict a Person from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company); provided, that, nothing in this clause (id) above; oris intended to prohibit the Investors’ compliance with applicable reporting requirements under Section 13(d) of the Exchange Act;
(ve) enter into any discussions agreements, arrangements or arrangements understandings with any third party (including security holders of the Company) with respect to any of the foregoing. The Buyer further agrees foregoing clauses (a) through (d), including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing (it being understood that it shall noteach Investor and its Affiliates, and or the Investors collectively, shall not permit be considered a “group” for purposes of this clause (e));
(f) except as contemplated by this Agreement and the Certificate of Designations, request the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l4.7; provided that this clause shall not prohibit the making of a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.7, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(g) purchase, sell or otherwise trade debt securities of the Company if as a result of such purchase, sale or trade such Investor beneficially owns 19.99% or more of the Company’s outstanding debt securities; provided, however, that subject to the terms of Section 4.3 and the Voting Agreements, nothing in this Section 4.7 will (including i) prevent the Investors’ designee serving on the board of directors of the Company from taking any action while acting in such designee’s capacity as a director of the Company in accordance with his or her fiduciary duties as a director, (ii) limit the ability to vote or transfer shares of Common Stock, privately make and submit to the Board of Directors any proposal that is intended to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to require public disclosure by any Person, but other than a public disclosure in respect of the implementation of proposals, actions or transactions approved by the Company), participate in rights offerings made by the Company to all holders of Common Stock, receive any dividends or similar distributions with respect to any securities of the Company, or tender shares of Common Stock into any tender or exchange offer or (iii) prohibit the Investors from complying with applicable reporting requirements under Section 13(d) of the Exchange Act. This Section 4.7 shall supersede and replace Section 4.7 of the Subscription and Exchange Agreement. Section 4.7 of the Subscription and Exchange Agreement is terminated hereby. Notwithstanding anything to the contrary herein, nothing in this sentence)Section 4.7 shall limit the rights of the Investors and their Affiliates under this Agreement, the Certificate of Designations, the Registration Rights Agreement, the Voting Agreement and/or the Warrant.
Appears in 1 contract
Sources: Subscription and Exchange Agreement (Comtech Telecommunications Corp /De/)
Standstill. The Buyer hereby Each member of the ValueAct Group agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Restricted Period”), neither it nor any of its Affiliates will, unless specifically invited requested by, or authorized in writing by the Companya resolution of, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any mannerBoard, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seekseek to effect, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way assist, assist or facilitate or encourage any other Person person or entity to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition (or sale) of any securities (material assets or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) businesses, of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender offer or exchange offer, merger merger, acquisition, share exchange or other business combination involving the Company or any of the Subsidiaries its subsidiaries, or Company Controlled Affiliates or any division or line of business of any thereof, (Ciii) any recapitalization, extraordinary or special dividend, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates its subsidiaries or any division thereofmaterial portion of its or their businesses (any such transaction described in this subparagraph (a), an “Extraordinary Transaction”); provided, however, that nothing in this subparagraph (a) shall prevent the ValueAct Group from voting in favor of any Extraordinary Transaction that has been approved or recommended by the Board, or voting against any Extraordinary Transaction that has not been approved and recommended by the Board;
(b) purchase or cause to be purchased or otherwise acquire or agree to acquire economic ownership (as defined below) of (i) any Common Stock, if in any such case, immediately after the taking of such action the ValueAct Group, together with their respective Affiliates, would, in the aggregate, economically own more than 14.9% of the then outstanding shares of Common Stock; provided, however, that it shall not be a breach of this subparagraph (b) if the ValueAct Group’s economic ownership of shares of Common Stock exceeds such 14.9% limitation solely as a result of share purchases, reverse share splits or other similar actions taken by the Company that by reducing the number of shares of Common Stock outstanding cause the ValueAct Group’s economic ownership to exceed such 14.9% limitation, so long as the ValueAct Group’s economic ownership shall not increase thereafter (except solely as a result of further share purchases, reverse share splits or other similar actions taken by the Company), unless and until the ValueAct Group’s economic ownership before and after such subsequent increase does not exceed such 14.9% limitation, or (Dii) any “solicitation” of “proxies” other securities issued by the Company;
(as such terms are used in c) seek to call, or to request the proxy rules call of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or consents otherwise) at any meeting of the stockholders of the Company, or seek election to vote the Board, seek to place a representative on the Board or seek the removal of any voting securities director from the Board, or otherwise acting alone, or in concert with others, seek to control, advise, change or influence the management, Board, governance instruments, policies or affairs of the Company;
(iid) 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, 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 solicitation on behalf of the Board), other than solely with other members of the ValueAct Group or one or more Affiliates of the ValueAct Group with respect to the shares of Common Stock acquired in compliance with subparagraph (b) above;
(e) solicit proxies or written consents of stockholders, 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any shares of Common Stock with respect to (i) any matter described in subparagraphs (a) through (c) above, (ii) any Extraordinary Transaction, (iii) any material change in the present board of directors or management of the Company or any subsidiary or division thereof, including, without limitation, any plans or proposals to change the number or the term of directors, to remove any director or to fill any existing vacancies on the board, or to change any material term of the employment contract of any executive officer, (iv) the opposition of any person nominated, or the nomination of any person not nominated, by the Company’s management or nominating committee, (v) any material change in the Company’s capital structure or business, or (vi) any other action to or seek to control, advise, change or influence the management, the Board, governance instruments, policies or affairs of the Company; provided, however, that nothing in this subparagraph (e) shall prevent the ValueAct Group from voting in favor of any Extraordinary Transaction that has been approved or recommended by the Board, or voting against any Extraordinary Transaction that has not been approved and recommended by the Board;
(f) make any public announcement with respect to any matter described in subparagraphs (a) through (e) above;
(g) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to any of the foregoing, advise, assist, encourage, support or seek to persuade others to take any action with respect to any of the foregoing, or act in concert with others or as part of a “group” group (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;foregoing; or
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(ivh) take any action which would or would that could reasonably be expected to force require the Company to make a public announcement regarding the possibility of any of the types of matters set forth events described in clause subparagraphs (ia) through (g) above; or
(vi) enter into any discussions request the Company or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Affiliates, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) in any public manner to amend or waive any provision of this Section 4(l) paragraph (including this sentencesubparagraph). Nothing in this Section 1 shall limit any actions that may be taken by ▇▇. ▇▇▇▇▇▇▇▇ acting solely in his capacity as a director of the Company consistent with his fiduciary duties to the Company’s stockholders as a director of the Company.
Appears in 1 contract
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer a) Provided that nothing contained herein will not, and will not permit any director, officer prevent or Affiliate of the Buyer to, in any manner, directly or indirectly prohibit Lilly from acquiring Voting Stock (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereofas defined below) of the Company pursuant to the Purchase Agreement or any pursuant to conversion of the Subsidiaries Note, Lilly will not, directly or indirectly, without the prior consent of a majority of the Board of Directors of the Company Controlled Affiliates (the "Board"), (i) acquire (or offer or agree to acquire) any Voting Stock if, after giving effect to any such acquisitionas a result, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, Lilly would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) 20% of the then outstanding Voting Stock; (ii) directly or indirectly solicit proxies or consents or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to the recommendation of the majority of the Board for a Takeover Event (as defined below); or (iii) transfer to any third party (other than to its "affiliates," "associates" (as such terms are defined in Rule 12b-2 under the Exchange Act), officers, directors or employees and other than pursuant to a proxy solicitation conducted by or on behalf of the Board), the right to vote any Voting Stock except in connection with the transfer of ownership of such Voting Stock for fair value. Lilly also agrees that it will not advise, assist or encourage any third party to do any of the foregoing. Notwithstanding the foregoing, (x) Lilly will not be obligated to dispose of any Voting Stock it owns if its percentage ownership is increased as a result of a decrease in the number of shares of Common Voting Stock then outstanding, and (By) in the event of any bona fide third party tender or exchange offeroffer for at least 50% of the outstanding Voting Stock of the Company, Lilly will be free to tender or exchange any or all of its Voting Stock and/or take such other actions as it deems advisable, in its sole discretion. The covenants in this Section 14(a) shall expire upon the later of (i) the fifth anniversary of the date hereof and (ii) the first anniversary of the termination of the Collaboration Agreement, dated as of the date hereof, between the Company and Lilly (the "Collaboration Agreement").
(b) The Company will give Lilly prompt notice of the receipt by the Company of any written notice couched in such terms as to put the Company reasonably on notice of the likelihood that a person or group has acquired or is proposing to acquire an aggregate position of at least 10% of the Voting Stock, the Company's receiving any bona fide offer to purchase or acquire 20% or more of the Voting Stock or all or substantially all of the assets of the Company, and any Board determination to seek an acquiror for in excess of 50% of the Voting Stock.
(c) Lilly will cause its affiliates and associates to comply with the provisions of this Section 14, whether directly or indirectly, individually or as part of a "group" (as such term is defined in Rule 13d-5 under the Exchange Act). When used in this Section 14, the term Lilly includes Lilly together with its affiliates and associates.
(d) For purposes of this Section 14, the term "TAKEOVER EVENT" means any proposal for any merger or other business combination involving the Company or any of its subsidiaries, the Subsidiaries purchase or Company Controlled Affiliates sale of all or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any substantially all of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities assets of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise actits subsidiaries, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies purchase of at least 20% of the Voting Stock, by tender offer or otherwise (except pursuant to the exercise of rights, warrants, options or similar securities distributed by the Company to holders of Voting Stock generally), and the term "VOTING STOCK" means the Common Stock and any preferred stock of the Company or any possessing voting rights and eligible to participate in votes of all of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected Company's stockholders pursuant to force the Company to make a public announcement regarding any Company's Certificate of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall notIncorporation and Delaware law, and shall not permit includes any directoroptions, officer convertible securities or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) other rights to amend or waive any provision of this Section 4(l) (including this sentence)acquire such stock.
Appears in 1 contract
Sources: Registration Rights and Standstill Agreement (Isis Pharmaceuticals Inc)
Standstill. The Buyer hereby Each Stockholder agrees that, during that for a period from and ---------- after the period commencing on date hereof until the Closing Date and ending on earlier of (a) the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate termination of the Buyer toprovisions of Section 2.1 hereof in accordance with its terms or (b) the termination of this Agreement in accordance with its terms, in neither it nor any mannerof its Subsidiaries will, without the prior written consent of the other party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly (including indirectly, by directing purchase or causing otherwise, any other Person that is not the Buyer voting securities or a director, officer direct or Affiliate indirect rights to acquire any voting securities of the Buyer):
(i) effect Company or seek▇▇▇▇▇, offer or propose (whether publicly or otherwise) to effectas the case may be, or announce any intention to effect Subsidiary thereof, or cause any material amount of the assets of the Company or participate in ▇▇▇▇▇, as the case may be, or any Subsidiary or division thereof outside the ordinary course of business; (ii) make, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) directly or indirectly, any acquisition "solicitation" of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) to vote, or consents seek to vote advise or influence any Person with respect to the voting of, any voting securities of the Company;
(ii) formCompany or ▇▇▇▇▇, join as the case may be, for the purpose of changing or in any way participate in a “group” (within influencing the meaning of Section 13(d)(3) control of the Company or ▇▇▇▇▇, as the case may be; or (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction involving the Company or ▇▇▇▇▇, as the case may be, or its securities or assets; provided, -------- however, the foregoing restrictions shall not (x) preclude ▇▇▇▇▇ from (A) ------- acquiring the securities contemplated by Article IV of this Agreement and the shares of Common Stock of the Stock Purchase Agreement and the transactions contemplated hereby and thereby, including without limitation the transactions contemplated by the Initial Purchase Agreement and the Universal Agreement (each as defined in the Stock Purchase Agreement), (B) filing a Schedule 13D in connection with the transactions contemplated by the Stock Purchase Agreement or the Exchange Agreement among Titus, Fargo, Herve Caen and ▇▇▇▇ ▇▇▇▇ of even date herewith (the "Exchange Agreement"), (C) voting its shares of Common Stock within its ------------------ discretion on any matter submitted for a vote or consent of the Company's stockholders, (D) taking any other action contemplated by the Stock Purchase Agreement, or (E) purchasing shares of Company Stock pursuant to open-market transactions on a national securities exchange or in the over-the-counter market; provided, further, that the restrictions on ▇▇▇▇▇ in this Section 3.6 -------- ------- shall lapse automatically to the extent any Person other than ▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇ takes any action with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
matters described in clauses (ii) and (iii) otherwise actabove, alone or (y) preclude Fargo from (A) acquiring the shares of ▇▇▇▇▇ common stock pursuant to the Exchange Agreement or (B) filing a Schedule 13D in concert connection with others, to seek to control or influence the management, transactions contemplated by the board of directors Stock Purchase Agreement or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Exchange Agreement.
Appears in 1 contract
Sources: Stockholder Agreement (Interplay Entertainment Corp)
Standstill. The Buyer hereby agrees that, during For the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)) commencing on the date hereof and ending on the date on which the Subject Stockholders, in the aggregate, no longer hold Equity Securities constituting (or representing upon the conversion thereof) five percent (5%) or more of the outstanding shares of Common Stock, no Subject Stockholder shall, and each Subject Stockholder shall cause its respective Controlled Affiliates, unless specifically invited expressly agreed in writing writing, in advance, by the Company, the Buyer will not, and will not permit any director, officer directly or Affiliate of the Buyer toindirectly, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):manner whatsoever:
(ia) effect or seekacquire, announce an intention to acquire, offer or propose (whether publicly to acquire, solicit an offer to sell or agree to acquire, or enter into any arrangement or undertaking to acquire, directly or indirectly, by purchase, or otherwise) to effect, record or announce any intention to effect direct or cause or participate in or indirect beneficial ownership interest in any way assist, facilitate Standstill Securities or encourage any assets (other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition than purchases of any securities (or beneficial ownership thereofassets in the ordinary course of business) or rights or options to acquire any other securities (or beneficial ownership thereof) of the Company or any of the its Subsidiaries or Company Controlled Affiliates ifany direct or indirect rights, after giving effect warrants or options to acquire record or direct or indirect beneficial ownership of any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually securities or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) assets of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries its Subsidiaries;
(b) make, effect, initiate, cause or Company Controlled Affiliates or participate in any division or line of take-over bid, tender offer, exchange offer, merger, consolidation, business of any thereofcombination, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofits Subsidiaries;
(c) solicit, make, effect, initiate, cause, or (D) in any “solicitation” way participate in, directly or indirectly, any solicitation of “proxies” (as such terms are used in the proxy rules of the SEC) proxies or consents to vote from any voting holders of any securities of the CompanyCompany or any of its Subsidiaries or call or seek to have called any meeting of stockholders of the Company or any of its Subsidiaries;
(iid) form, join or in 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) with respect to the any securities of the Company or any of the its Subsidiaries or Company Controlled Affiliatesthat are not Standstill Securities;
(iiie) otherwise actarrange, alone facilitate, or in concert with othersany way participate, to seek to control directly or influence indirectly, in any financing for the management, the board purchase of directors any securities or the policies assets of the Company or any of the its Subsidiaries or Company Controlled Affiliatesthat are not Standstill Securities;
(ivf) (i) act, directly or indirectly, to seek control or direct the board of directors, stockholders, policies or affairs of the Company or any of its Subsidiaries; (ii) solicit, propose, seek to effect or negotiate with any other Person with respect to any form of business combination transaction involving the Company or any take-over bid, tender, exchange offer, merger, consolidation, recapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction involving the Company or any of its Subsidiaries; or (iii) disclose an intent, purpose, plan or proposal with respect to the Company, or any securities or assets of the Company or any of its Subsidiaries that are not Standstill Securities;
(g) take any action which would that is intended to or would reasonably be expected to force require the Company or any of its Subsidiaries to make a public announcement regarding any of the types of matters set forth in clause clauses (a) through (f), inclusive, of this Section 2.3;
(h) agree or offer to take, or encourage or propose (publicly or privately) the taking of, or announce an intention to take, or otherwise make any public announcement with respect to, any action referred to in clauses (a) through (g), inclusive, of this Section 2.3; and
(i) above; or
(v) enter into any discussions request of, or arrangements with any third party with respect propose to the Company, or any of the foregoing. The Buyer further agrees its representatives that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive or consider the amendment or waiver of any provision of this Section 4(l2.3. Notwithstanding anything to the contrary in this Section 2.3, (i) any pooled investment vehicle managed or under the control of WCAS or any of its Affiliates that primarily invests on a passive basis in debt securities or debt instruments shall be permitted to acquire up to $50 million in the aggregate of all classes or types of Debt Securities that are not convertible into Equity Securities or otherwise have voting features permitting the holders thereof to vote with the holders of any Equity Security on any matter, (including ii) this sentence)Section 2.3 shall not apply to any indirect interest held by any Controlled Affiliate of a Person if such Controlled Affiliate is an individual or trust or other investment vehicle formed for the benefit of individuals or charitable concerns and such interest is held through another entity that is not controlled by such Controlled Affiliate (e.g. a publicly traded mutual fund, a “blind” trust or investment account or a private equity or other private investment fund with respect to which such Controlled Affiliate is not affiliated) and (iii) nothing herein shall limit in anyway the conduct of any person who is serving on the Board and who is affiliated with WCAS or any of its Controlled Affiliates from taking any actions in his or her capacity as such, nor prohibit any such person or WCAS or any of its Controlled Affiliates from taking any action in furtherance of or in order to assure that any person who may be designated by them to serve on the Board as contemplated by this Agreement is elected to serve on the Board. In addition, notwithstanding anything to the contrary in this Section 2.3, each Subject Stockholder shall be permitted to sell its Equity Securities in any Approved Sale of the Company.
Appears in 1 contract
Standstill. The Buyer (a) General Standstill. Each of the Investor Members hereby agrees thatagrees, during on behalf of the period commencing on the Closing Date Investor Member and ending on the second annual anniversary thereof his or her Affiliates (the “"Investor Member Parties"), that from the date hereof until November 17, 2008 (the "Standstill Period”), unless specifically invited in writing by the Company, the Buyer ") such Investor Member will not, and that such Investor Member will cause each of his or her Affiliates not, without the prior written approval of CharterMac (which approval shall require the approval of not permit any director, officer or Affiliate less than a majority of the Buyer Independent Trustees (as defined in the Second Amended and Restated Trust Agreement of CharterMac)) to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a directorindirectly, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage assist any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company CharterMac or any of the Subsidiaries its subsidiaries, Affiliates or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, divisions; (B) any tender or exchange offer, merger or other business combination involving the Company CharterMac or any of the Subsidiaries or Company Controlled its subsidiaries, Affiliates or any division or line of business of any thereof, divisions; (C) any recapitalization, restructuring, conversion, liquidation, dissolution or other extraordinary transaction with respect to the Company CharterMac or any of the Subsidiaries or Company Controlled its subsidiaries, Affiliates or any division thereof, or divisions; (D) any “acquisition of a material or significant amount of the assets of CharterMac or any of its subsidiaries, Affiliates or divisions; or (E) any "solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents with respect to vote any voting securities of CharterMac (provided, however, that nothing in this clause (i) shall prohibit an Investor Member Party who is an officer or trustee of CharterMac from proposing to the Company;
Board of Trustees of CharterMac (in his or her capacity as an officer or trustee of CharterMac) that CharterMac (1) sell to a Person who is not an Affiliate of any Investor Member Party in any twenty four (24) consecutive month period an asset(s) comprising in the aggregate less than 50% of the then fair market value of CharterMac's total assets, or (2) effect a recapitalization or restructuring provided such recapitalization or restructuring results in all CharterMac shareholders being treated equally and does not disproportionately increase the Investor Member Parties' aggregate proportionate interest in CharterMac as compared to the interest in CharterMac of all other CharterMac shareholders immediately prior to such recapitalization or restructuring); (ii) form, join or in any way participate in a “"group” " (within as defined under the meaning Securities Exchange Act of Section 13(d)(31934, as amended, the "1934 Act")) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or regarding any of the Subsidiaries or Company Controlled Affiliates;
types of matters set forth in (i) above; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors directors, managing member or the trustees or policies of the Company CharterMac or any of the Subsidiaries its subsidiaries, Affiliates or Company Controlled Affiliates;
divisions; (iv) take any action which would might force or would reasonably be expected to force the Company require CharterMac or any of its subsidiaries, Affiliates or divisions to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and foregoing restrictions shall not permit be deemed to limit any director, Investor Member Party who is an officer or Affiliate trustee of CharterMac from conducting his or her activities or performing his or her duties in a manner consistent with his or her fiduciary obligations in such capacities. Notwithstanding anything to the contrary in this Agreement, the parties agree that no Investor Member shall have any liability, or be deemed in breach of this Agreement, due to the actions of any other Investor Member.
(b) General Exceptions to the Standstill. Notwithstanding anything to the contrary contained herein, each Investor Member and his or her Affiliates may acquire additional Common Shares: (i) to maintain the percentage interest of voting securities in CharterMac held by the applicable Investor Member immediately following the completion of issuance of Special Common Units pursuant to the Contribution Agreement in the event that such percentage interest in CharterMac is reduced as a result of subsequent issuances of voting securities by CharterMac; (ii) pursuant to a tender offer or exchange offer by any of the Buyer toInvestor Member Parties for all voting securities of CharterMac not owned by such Investor Member Parties in the event of the commencement of a tender offer or exchange offer by any Person (other than CharterMac or any, during Investor Member Party or any Person acting in concert with, or induced by, such Investor Member Parties) to purchase voting securities of CharterMac (a "Third Party Tender Offer") that would result in a Change of Control (as defined below), which tender offer or exchange offer is not withdrawn or terminated prior to such acquisition; provided, however, that if a Third Party Tender Offer is for more than twenty (20%) percent of the Standstill Periodissued and outstanding voting securities of CharterMac but would not result in a Change of Control, any of the Investor Member Parties may conduct its own tender offer or exchange offer but only for an amount of voting securities which, when aggregated with all voting securities to be acquired pursuant to the tender or exchange offer of any other Investor Member Party, is no more than the number of voting securities sought in such Third Party Tender Offer, so long as such Third Party Tender Offer is not withdrawn or terminated prior to such acquisition; and (iii) issued by CharterMac to the Investor Members including issuances of Common Shares (or options to obtain Common Shares) under executive compensation arrangements or CharterMac option plans, but not including original issuances by CharterMac to the public through underwriters, placement agents or otherwise. In addition, each of the Investor Members and his or her Affiliates, other than Stephen M. Ross, may acquire additional Common Shares from time to t▇▇▇ ▇▇ ▇▇▇▇ ▇▇ the aggregate percentage interest of voting securities of CharterMac held by such Investor Member and his or her Affiliates following such acquisition remains less than or equal to the aggregate percentage interest of voting securities of CharterMac held by such Investor Member and his or her Affiliates immediately following the completion of issuance of Special Common Units pursuant to the Contribution Agreement plus 1%. For the purposes of this agreement, a "Change of Control" means, with respect to CharterMac, (A) the acquisition by any Person or group of Persons, which is not an Affiliate, of beneficial ownership, as that term is defined in Rule 13d-3 under the 1934 Act, directly or indirectly, publicly request of more than 40% of the Company issued and outstanding voting securities of CharterMac ("Voting Interests"); or its directors, officers, employees (B) the merger or agents) to amend consolidation of CharterMac with one or waive any provision more other business entities as a result of this Section 4(l) (including this sentence)which the holders of all of the issued and outstanding Voting Interests immediately before the merger or consolidation hold less than 50% of the Voting Interests of the surviving or resulting Person.
Appears in 1 contract
Sources: Standstill Agreement (Chartermac)
Standstill. The Buyer hereby agrees that, during During the period commencing beginning on the Closing Date date hereof and ending at 11:59 pm Pacific Time on the second annual anniversary thereof November 11, 2020 (the “Standstill PeriodTermination Date”), unless specifically invited in writing by neither the Company, the Buyer will not, and will not permit Purchaser nor any director, officer or Affiliate of the Buyer to, in any mannerits Affiliates (as defined below) shall, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or prior written consent of a director, officer or Affiliate majority of the Buyer):members of the Board of Directors of the Company (the “Board”) who are not affiliated with the Purchaser:
(i) a. effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way advise, assist, knowingly facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or participate cause:
i. any acquisition, or obtaining any economic interest in, (A) any acquisition of right to direct the voting or disposition of, or any other right with respect to, any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of its subsidiaries (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities or any obligations measured by the Subsidiaries price or value of any securities of the Company Controlled Affiliates ifor any of its subsidiaries, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after giving effect the passage of time or upon the satisfaction of one or more conditions pursuant to any such acquisitionagreement, arrangement or understanding, without the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) prior consent of the shares of Common Stock then outstanding, (B) Board;
ii. any tender or exchange offer, merger or other merger, consolidation, business combination involving or acquisition or disposition of assets of the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) its subsidiaries;
iii. any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) its subsidiaries; or
iv. any “solicitation” of “proxies” (as such terms are used in the proxy rules Regulation 14A of the SECSecurities Exchange Act of 1934, as amended (the “Exchange Act”)) or consents to vote any voting securities of the Company, or become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act) or propose, or solicit stockholders of the Company for the approval of, any stockholder proposals with respect to the Company or seek to advise or influence any person with respect to the voting of any voting securities of the Company;
(ii) b. form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇securities laws) with respect to the any securities of the Company or any securities convertible into Common Stock or any other voting securities of the Subsidiaries Company or Company Controlled Affiliatesotherwise act in concert with any person in respect of any such securities;
(iii) c. otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors Board or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(iv) d. take any action which would or would reasonably be expected to force result in the Company or its representatives being obligated to make a public announcement regarding any of the types of matters set forth in clause (i) above; orthis Section 1;
(v) e. enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not; or
f. publicly disclose any intention, and plan or arrangement regarding any of the matters referred to in this Section 1; provided that, the foregoing restrictions shall not permit any director, officer or Affiliate apply after (A) a public announcement by the Company of the Buyer toinitiation of any merger, during the Standstill Periodconsolidation, directly acquisition, scheme, business combination or indirectly, publicly request other extraordinary transaction in which the Company or any of its subsidiaries is a constituent corporation or party and following consummation of such transaction, either (i) substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 50% or more of the voting power of the Company would not continue to beneficially own at least 50% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity or (ii) all or a substantial part of the assets of the Company and its subsidiaries would be transferred to a third party (a “Business Combination”) or (B) the submission of any bona fide offer by any third party to acquire all or a substantial portion of the securities or assets of the Company or its directorssubsidiaries (which for the avoidance of doubt shall exclude any offer with respect to which the Company elects not to engage in substantive negotiations), officersprompt notice of which shall be provided to the Purchaser; provided, employees or agents) to amend or waive any provision of further, that nothing in this Section 4(l1 is intended to (X) restrict the Purchaser’s right to vote its shares of Common Stock purchased pursuant to the Purchase Agreement or otherwise in its discretion on matters brought to a vote of the stockholders of the Company, (including this sentence)Y) restrict the activities of the Purchaser or the discussions among the representatives of the Company and the Purchaser, in each case, as contemplated by that certain Amended and Restated Collaboration Agreement, dated the date hereof, by and among the Company and Nestec Ltd. or (Z) restrict the Purchaser’s or any of its Affiliates’ right to acquire any rights, title or interest in any options or other securities of the Company granted to members of the Board who are affiliated with the Purchaser.
Appears in 1 contract
Standstill. The Buyer Investor hereby agrees that, that during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Designated Period”), unless specifically invited in writing by the Company, neither the Buyer will notInvestor nor any entity or person which is controlled (as defined in Rule 12b-2 under the ▇▇▇▇ ▇▇▇) directly or indirectly by the Investor (but specifically excluding, and will not permit for the avoidance of doubt, any director, officer or Affiliate of the Buyer toInvestor’s portfolio companies in which the Investor holds less than 25% of the outstanding voting securities and where the Investor does not have representatives constituting a majority of the board of directors thereof) (each, a “Investor Controlled Entity”), will in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer Investor or a director, officer or Affiliate of the BuyerInvestor Controlled Entity):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (assets, indebtedness or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) businesses of the Company or any of the its Subsidiaries or any affiliates controlled by the Company (“Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingAffiliates”), (B) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries or Company Controlled Affiliates or any division assets of the Company or line the Subsidiaries or Company Controlled Affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its Subsidiaries, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division thereofAffiliates, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the CompanyCompany or any of its Company Controlled Affiliates;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of as defined under the ▇▇▇▇ ▇▇▇) with third parties with respect to any of the matters described in this Section 4(o) or otherwise act in concert with third parties in respect of any of the matters described in this Section 4(o);
(iii) seek the removal of any directors from the Board of Directors or a change in the size or composition of the Board of Directors (it being understood that the foregoing shall not prohibit the Investor or any subsequent holder of Purchased Shares from voting any securities of the Company in any manner not otherwise prohibited by this Section 4(o));
(iv) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the its Subsidiaries or Company Controlled AffiliatesAffiliates if, after giving effect to any such acquisition, the Investor and/or any Investor Controlled Entity, either individually or in the aggregate, would beneficially own more than (A) until the second anniversary of the date hereof, nineteen and nine-tenths percent (19.9%) of the Common Stock (calculated on a Fully-Diluted Basis, but excluding from any such calculation any securities issued to the Investor as a result of its exercise of its Special Preemptive Rights, under Section 4(l)), or (B) after such second anniversary, twenty-three percent (23.0%) of the Common Stock (calculated on a Fully-Diluted Basis);
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(ivv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause clauses (i) and/or (iv) above; or
(vvi) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees ; provided, however, that it shall not, and the foregoing shall not permit any director, officer or Affiliate restrict the ability of the Buyer Board Representative from exercising his fiduciary duties. Notwithstanding the foregoing, if (x) the Board of Directors decides, in its sole discretion, to engage in a process that solicits third parties to determine their interest in a potential transaction (a “Sale Process”) that is intended to, during the Standstill Periodor would reasonably be expected to, directly or indirectlygive rise to a Triggering Event, publicly request the Company shall invite the Investor to participate in such Sale Process on the terms and conditions generally made available to the other participants in such Sale Process or (y) a Triggering Event shall occur without the Company conducting such a Sale Process (either within a reasonable time period before or its directorsat any time after such Triggering Event), officers, employees or agents) to amend or waive any provision of nothing in this Section 4(l4(o) shall prohibit the Investor from submitting a proposal to the Board of Directors which competes with the Triggering Event (including provided that nothing in this sentenceclause (y) shall entitle the Investor to any preferential treatment, compared to other parties).. Nothing contained in this Section 4(o) shall require the Board of Directors to engage in a Sale
Appears in 1 contract
Standstill. 11.1 The Buyer hereby Bidder undertakes and agrees thatthat subject to clause 11.2, during without the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by prior written consent of the Company, for six months from the Buyer will notdate of this Agreement, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect it and each member of the Bidder Group will not and (ii) it will use reasonable endeavours to procure that no person who is or seekis presumed to be acting in concert with the Bidder will (directly or indirectly) and whether alone or with any other person:
11.1.1 acquire, announce an intention to acquire (unless required to do so by The Panel on Takeovers and Mergers pursuant to Rule 2.2 of the Takeover Code or by law), offer or propose to acquire, or enter into any agreement, arrangement or undertaking to acquire, any of the Securities, or any direct or indirect interest in any of the Securities;
11.1.2 enter into any agreement, arrangement or understanding (whether publicly or not legally binding) to do any act as a result of which it or any other person may become obliged (under the Takeover Code or otherwise) to effectannounce or make an offer to acquire any Target Group Company;
11.1.3 act in concert with, or announce enter into any intention agreement, arrangement or understanding (whether or not legally binding) with any other person in connection with any offer to effect acquire the Company to be made or cause announced by that other person; or
11.1.4 solicit or make or participate in any solicitation of, or in any way assistseek to persuade, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries Company's shareholders:
(a) to take any action in connection with or Company Controlled Affiliates ifrelating to a possible acquisition (directly or indirectly) of, after giving effect to or offer for any such acquisitioninterest in, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries Securities or Company Controlled Affiliates or any division or line of the business of the Company; or
(b) to vote in a particular manner at any thereofmeeting of the shareholders of the Company, (C) or requisition or join in requisitioning any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect general meeting of the Company.
11.2 The restrictions in clause 11.1 shall cease to apply if:
11.2.1 a Bidder Group Company announces a firm intention to acquire the Company or any under Rule 2.7 of the Subsidiaries or Company Controlled Affiliates or any division thereofTakeover Code, or (D) any “solicitation” and such acquisition is recommended by the board of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities directors of the Company;
11.2.2 any person (ii) formother than a Bidder Group Company), join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or person not acting in concert with othersa Bidder Group Company, to seek to control or influence announces a possible offer for the management, Company under Rule 2.4 of the Takeover Code and such announcement includes a statement that the board of directors or the policies of the Company has indicated to such person that its possible offer is at a value that they would be willing to recommend, should a firm intention to make an offer under Rule 2.7 of the Takeover Code be announced (or similar words to that effect);
11.2.3 any person (other than a Bidder Group Company), or any person not acting in concert with a Bidder Group Company, announces a firm intention to acquire the Company under Rule 2.7 of the Subsidiaries Takeover Code (whether such offer is recommended or not); or
11.2.4 the Company Controlled Affiliates;enters into, or announces that it is proposing to enter into, a reverse takeover or Rule 9 waiver proposal (each as referred to in the Takeover Code) or sell all or substantially all of the assets of the Target Group,
11.3 The restrictions in clause 11.1 shall not apply to any person which is within the same group as any connected adviser (ivas defined in the Takeover Code) of the Bidder (or any Bidder Group Company) who acquires or disposes of any interest in any Securities or takes any other action otherwise prohibited by clause 11.1 in the ordinary course of business of that person, including as a fund manager, market-maker, broker or provider of trustee or nominee services, where the decision to acquire or dispose or to take such action is taken by a person who is not in possession of Confidential Information, involved in the Evaluation or implementation of the Proposed Transaction or acting on behalf or at the direction of the Bidder (or any action which would Bidder Group Company) in taking such decision or would reasonably action.
11.4 In circumstances where clause 11.2 applies as a result of a third party having announced a firm intention to acquire the Company under Rule 2.7 of the Takeover Code, the Bidder will not be expected to force prohibited or restricted from approaching a shareholder of the Company to make a public announcement regarding discuss the Proposed Transaction and seek irrevocable undertakings in respect of any possible offer. In such circumstances, the Bidder may disclose only the proposed commercial and other terms of its possible offer and no other part of Confidential Information to any such shareholder.
11.5 Nothing in clause 11.1 shall restrict or prevent any Bidder Group Company from:
11.5.1 making any proposal to the board of directors of the types of matters set forth in clause (i) aboveCompany; or
(v) enter 11.5.2 entering into any discussions agreement, arrangement or arrangements understanding (whether or not legally binding) with any third party other Bidder Group Company in connection with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Proposed Transaction.
Appears in 1 contract
Sources: Confidentiality Agreement
Standstill. The Buyer As of the date hereof, you hereby agrees represent and warrant to the Company that neither you nor any of your Representatives acting on your behalf owns any securities of the Company, except as previously disclosed by you to the Company. You agree that, during for a period of one year from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this letter agreement, unless specifically invited in writing by the Board of Directors of the Company, the Buyer neither you nor any of your or your Representatives acting on your behalf will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or affiliates or assets of the Company Controlled Affiliates or any division the subsidiaries or line affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
Company or any of its affiliates; (iib) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of as defined under the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries or Company Controlled Affiliates;
Company; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees You also agree during such period not to request (in any manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). You further agree that, if at any time during such period, you or any of your Representatives acting on your behalf are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or business of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction and the parties involved. The term “securities”, as used in this letter agreement, shall include, without limitation, any securities of the Company and any derivative, swap or other transaction the purpose or effect of which is to give you or any of your Representatives acting on your behalf economic risk similar to ownership of shares of any class or series of the Company, including due to the fact that the value of such derivative, swap or other transaction is determined by reference to the price, value or volatility of any shares of any class or series of the Company, or which derivative, swap or other transaction provides, directly or indirectly, the opportunity to profit from any increase in the price or value of shares of any class or series of the Company.
Appears in 1 contract
Standstill. The Buyer hereby (a) Purchaser agrees that, during that until the period commencing on second anniversary of the Closing Date and ending on Date, without the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate prior written approval of the Buyer toIndependent Common Directors, in none of Purchaser or any mannerof its Affiliates will, directly or indirectly (including by directing or causing in any other Person that is not the Buyer or a directorway, officer or Affiliate of the Buyer):
(i) effect or seekacquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Common Stock of the Company if such acquisition would result in Purchaser or its Affiliates having Beneficial Ownership of 49.9% or more of the outstanding shares of Common Stock of the Company.
(whether publicly b) Purchaser agrees that from the second anniversary of the Closing Date through the third anniversary of the Closing Date, without the prior written approval of the Independent Common Directors, none of Purchaser or otherwise) to effectany of its Affiliates will, directly or announce any intention to effect or cause or participate in or indirectly in any way assistway, facilitate or encourage any other Person to effect or seekacquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any outstanding shares of Common Stock of the Company if such acquisition would result in Purchaser or its Affiliates having Beneficial Ownership of 49.9% or more of the outstanding shares of Common Stock of the Company, unless such acquisition or offer or agreement to acquire such Common Stock is made pursuant to a Permitted Tender Offer (whether for the avoidance of doubt, for purposes of calculating the Beneficial Ownership of Purchaser and its Affiliates hereunder, (x) any security that is convertible into, or exercisable for, any Common Stock that is Beneficially Owned by Purchaser or its Affiliates shall be treated as fully converted or exercised, as the case may be, into the underlying Common Stock and (y) Common Stock and securities convertible into, or exercisable for, Common Stock, that are Beneficially Owned by Purchaser and its Affiliates shall be aggregated).
(c) Except to the extent expressly permitted by Section 4.1(a) or (b), Purchaser agrees that until the third anniversary of the Closing Date, without the prior written approval of the Independent Common Directors, none of Purchaser or any of its Affiliates will, directly or indirectly:
(1) enter into or agree, offer, propose or seek (either publicly or otherwiseprivately, except to the Board of Directors or the Independent Common Directors in a manner that does not require the Company to publicly disclose) to effect enter into, or participate inotherwise be involved in or part of, (A) any acquisition of any securities (transaction, merger or beneficial ownership thereof) other business combination relating to all or rights or options to acquire any securities (or beneficial ownership thereof) part of the Company or any of the Company Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually acquisition transaction for all or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) part of the shares assets of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company Subsidiary or any of the Subsidiaries or Company Controlled Affiliates or any division thereoftheir respective businesses;
(2) make, or (D) in any way participate in, any “solicitation” of “proxies” (as such terms are used in defined under Regulation 14A under the proxy Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder (the “Exchange Act”) disregarding clause (iv) of Rule 14a-1(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) to vote, or seek to advise or influence any person or entity with respect to the SEC) or consents to vote voting of, any voting securities of the CompanyCompany or any Company Subsidiary; provided that this subsection shall not be deemed to restrict (x) the Preferred Stock Directors from participating as members of the Board of Directors and any committees thereof in their capacity as such or (y) any Liberty Party from opposing publicly or privately, voting against and encouraging others to vote against any proposal of a third party regarding a merger or other business combination, or opposing publicly or privately any tender or exchange offer, regardless of whether such proposal or offer is supported by the Board of Directors;
(ii3) call or seek to call a meeting of the stockholders of the Company or any of the Company Subsidiaries or initiate any stockholder proposal for action by stockholders of the Company or any of the Company Subsidiaries, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act and the rules and regulations promulgated thereunder) with respect to the any voting securities of the Company Company, or any of the Subsidiaries seek, propose or Company Controlled Affiliates;
(iii) otherwise act, act alone or in concert with others, to seek to influence or control or influence the management, the board of directors or the policies of the Company or any Company Subsidiaries; provided that this subsection shall not be deemed to restrict the Preferred Stock Directors from participating as members of the Subsidiaries or Company Controlled Affiliates;
(iv) take Board of Directors and any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth committees thereof in clause (i) abovetheir capacity as such; or
(v4) enter into bring any discussions action or arrangements with any third party with respect otherwise act to any contest the validity of this Section 4.1 or seek a release of the foregoing. The Buyer further agrees that it shall notrestrictions contained herein, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly make a public request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l4.1.
(d) The provisions of Section 4.1(a), (including b), and (c), and Section 4.2, shall terminate immediately and automatically upon the first to occur of any of the foregoing:
(1) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(2) the Company or any material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (1) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, or (v) make a general assignment for the benefit of creditors;
(3) any proposal relating to a merger or other transaction, pursuant to which Purchaser or any of its Affiliates would acquire majority control of the Company, shall be submitted to a vote of the holders of Common Stock of the Company pursuant to Section 4.1(a), (b) or (c) with the prior written approval of the Independent Common Directors, and such proposal shall have received the affirmative vote of a majority of the shares of Common Stock outstanding immediately prior to the commencement of such Permitted Tender Offer and not owned by Purchaser or any of its Affiliates; or
(4) after the second anniversary of the Closing Date, the Purchaser shall consummate the purchase of shares of Common Stock tendered pursuant to a Permitted Tender Offer in compliance with Section 4.1(b), if the number of shares tendered in such Permitted Tender Offer constituted a majority of the shares of Common Stock outstanding immediately prior to the commencement of such Permitted Tender Offer and not owned by Purchaser or any of its Affiliates.
(e) For purposes of this sentence).Agreement,
Appears in 1 contract
Standstill. The Buyer hereby Employee agrees that, during for a period of two (2) years from the period commencing Resignation Date, neither Employee nor any of Employee’s affiliates or representatives acting on the Closing Date and ending Employee’s behalf or on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited behalf of other persons acting in writing by the Company, the Buyer concert with Employee will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or affiliates or assets of the Company Controlled Affiliates or any division the subsidiaries or line affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
Company or any of its affiliates; (iib) form, join or in any way participate in a “group” (within the meaning as defined under Securities Exchange Act of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇1934, as amended) with respect to the Company or otherwise act in concert with any person in respect of any securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
Company; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Company’s Board of directors Directors or the policies of the Company or any to obtain representation on the Company’s Board of the Subsidiaries or Company Controlled Affiliates;
Directors; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further Employee also agrees during such period not to request (in any manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) 1.7 (including this sentence).
Appears in 1 contract
Sources: Separation and Release Agreement (NeuroBo Pharmaceuticals, Inc.)
Standstill. The Buyer Except as otherwise provided in this Agreement, each Investor hereby agrees that, during for a period ending two years following the period commencing on the Closing Date and ending on the second annual anniversary thereof date hereof (the “Standstill Period”), unless specifically invited it will not (and will ensure that its Affiliates (and any Person acting on behalf of or in writing by concert with it or any of its Affiliates) will not), directly or indirectly, without the prior written consent of the Board of Directors of the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect acquire, agree to acquire, propose, seek or seek, offer or propose (whether publicly or otherwise) to effectacquire, or announce any intention to effect facilitate the acquisition or cause or participate in or in any way assistownership of, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifits Subsidiaries, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) assets of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries its Subsidiaries, any warrant or Company Controlled Affiliates option to purchase such securities or assets, any cash settled or other form of equity swap arrangement, any security convertible into any such securities, or any division other right to acquire such securities, other than in connection with the transactions contemplated by this Agreement, provided that, notwithstanding the foregoing, each Investor may acquire beneficial ownership if and to the extent that such beneficial ownership (1) does not cause the “Constructive Ownership” or line of business “Beneficial Ownership” of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxiesPerson” (as such terms are used defined in the proxy rules Charter) to be in violation the Ownership Limits as modified with respect to such Investor by any Ownership Limit Waiver then in effect with respect to such Investor, and (2) is consistent with and not in violation of applicable securities Laws and regulations, (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the SECCompany, any of its securities or any of its Subsidiaries, (iii) make, or consents in any way participate or engage in, any solicitation of proxies to vote vote, or seek to advise or influence any Person with respect to the voting of, any securities of the Company;
, (iiiv) 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 the any voting securities of the Company Company, (v) call, request the calling of, or any otherwise seek or assist in the calling of a special meeting of the Subsidiaries or Company Controlled Affiliates;
stockholders of the Company, (iiivi) otherwise act, alone or in concert with others, to seek to control or influence the management, the board Board of directors Directors, governing instruments or the policies or affairs of the Company Company, (vii) disclose any intention, plan or arrangement to take any of the actions enumerated in clauses (i) through (vi) above or (viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements enumerated in clauses (i) through (vi) above with any other Person or group (within the meaning of Section 13(d)(3) of the Exchange Act). Each Investor further agrees that during the Standstill Period it will not (and it will ensure that its Affiliates (and any Person acting on behalf of or in concert with it or any of its Affiliates) will not), directly or indirectly, without the Subsidiaries or Company Controlled Affiliates;
(iv) prior written consent of the Board of Directors of the Company, take any action which that would or would reasonably be expected to force require the Company to make a public announcement regarding any the possibility of the types a significant transaction, business combination, merger or other type of matters set forth transaction described in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)paragraph.
Appears in 1 contract
Sources: Securities Purchase Agreement (Colony Financial, Inc.)
Standstill. The Buyer hereby agrees that, during Until the period commencing on date that the is the later of eighteen (18) months after (i) the Closing Date and ending (ii) the date there is no longer a director serving on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing Board of Directors that was nominated by the CompanyPurchaser and elected by the holders of Convertible Preferred Stock pursuant to the Series A Certificate, the Buyer Purchaser agrees that, without the prior approval of the Board of Directors, the Purchaser will not, and will not permit directly or indirectly, through its Subsidiaries or any director, officer or Affiliate other persons who would be considered to be members of a “group” (as used in Section 13(d)(3) of the Buyer toExchange Act) with the Purchaser:
(a) purchase, offer to purchase, or agree to purchase or otherwise acquire beneficial ownership (as determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any mannerCommon Stock, directly or indirectly (including by directing any securities convertible or causing exchangeable into Common Stock, excluding any shares of Common Stock, Convertible Preferred Stock or other Person that is not the Buyer or securities acquired pursuant to a director, officer or Affiliate conversion of the Buyer):Convertible Preferred Stock or otherwise acquired pursuant to the Transaction Documents;
(ib) effect or seekmake, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition solicitation of proxies to vote any voting securities of the Company or any of its Subsidiaries, or seek or to propose to influence, change or control, management or board of directors of the Company by use of any public communication or other communications to holders of securities intended for such purpose; or
(c) make a public proposal for a change of control transaction involving, or beneficial ownership thereof) any other acquisition, including a merger, consolidation or rights other business combination transaction or options to acquire any securities (or beneficial ownership thereof) tender offer related thereto, of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofCompany’s Subsidiaries, or (D) any “solicitation” the purchase of “proxies” (as such terms are used in the proxy rules all or substantially all of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies assets of the Company and its Subsidiaries; provided, however, that nothing in this Section 4.1 will limit (I) any Google Party’s ability to vote or Transfer (subject to Section 4.2) its Common Stock or Convertible Preferred Stock or otherwise exercise rights under its Convertible Preferred Stock or (II) the ability of any director elected pursuant to the Series A Certificate to vote or otherwise exercise its fiduciary duties as a member of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any Board of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Directors.
Appears in 1 contract
Sources: Investment Agreement (Care.com Inc)
Standstill. The Buyer hereby agrees that(a) For the term of this Agreement as set forth in Section 7 hereof, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate each of the Buyer toCompany and each Shareholder shall not and, in any mannerto the extent acting on its behalf or with its approval, its respective Representatives shall not, directly or indirectly (including indirectly, and the Company and the Shareholders shall cause any person controlled by directing or causing any other Person that is it not to, without the Buyer or a directorprior written consent of Scorpio, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assistmanner acquire, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options agree to acquire or make any securities (proposal to acquire, directly or beneficial ownership thereof) indirectly, any securities, indebtedness or property of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect any derivative position linked to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) securities of the Company; provided, however, that the Shareholders shall be permitted to participate in any future equity offering involving the Company's securities pro-rata and based on the number of ordinary shares of Common Stock then outstandingthe Company held by them as of October 16, 2018, (Bii) propose to enter into, directly or indirectly, any tender or exchange offermerger, merger consolidation, recapitalization, business combination, partnership, joint venture or other business combination similar transaction involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofits subsidiaries, (Ciii) any recapitalizationduring the Exclusivity Period, restructuring, liquidation, dissolution or other extraordinary transaction with respect to cause the Company to make any payment exceeding the amount of United States Dollars Two Hundred and Fifty Thousand ($250,000) or its equivalent in any other currency, in a single payment or a series of two or more payments, without the Subsidiaries or prior express written consent of Scorpio, provided, however, that nothing in this Section 2(a)(iii) shall be deemed to prohibit the Company Controlled Affiliates or any division thereoffrom making a payment of United States Dollars One Million and Nine Hundred Thousand ($1,900,000) for partial repayment and permanent reduction of principal under the Company's existing revolving credit facility (iv) make, or (D) in any “way participate in, any "solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the U.S. Securities and Exchange Commission (the "SEC")) to vote, or consents seek to vote advise or influence any person with respect to the voting of any voting securities of the Company or any of its subsidiaries, provided, however, that nothing herein shall be deemed to restrict the ability of the Shareholders to vote, or grant instructions to vote, ordinary shares of the Company held by them as of October 16, 2018 (record date for the Company;
's annual general meeting of shareholders to be held on December 11, 2018 (iithe "Annual Meeting")) in accordance with the recommendation of the board of directors of the Company as set forth in the proxy statement relating to the Annual Meeting dated November 13, 2018 and filed with the U.S Securities and Exchange Commission on a Report on Form 6-K on November 13, 2018, and provided further, that nothing herein shall be deemed to prevent any Shareholder from voting, or granting instructions to vote, any ordinary or other voting shares of the Company in favor of any shareholder proposal, action or other matter on which ordinary shares of the Company are entitled to vote, in accordance with the recommendation of the Company's board of directors, where the Company's Executive Chairman voting with the majority in making such recommendation or with the prior written approval of Scorpio, (v) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Securities Exchange Act of 1934) with respect to the any voting securities of the Company or any of its subsidiaries except where such group consists solely of the Subsidiaries Shareholders and Scorpio or Company Controlled Affiliates;
its Representatives, (iiivi) otherwise act, alone or in concert with others, to seek to control or influence the management, the board Board of directors Directors or the policies of the Company Company, (vii) disclose any intention, plan or arrangement inconsistent with the foregoing, or (viii) advise, assist or encourage any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth other persons in clause (i) above; or
(v) enter into any discussions or arrangements connection with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate .
(b) Each of the Buyer to, Shareholders also agree during the Standstill Periodsuch period not to (x) request, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to that any party hereto amend or waive any provision of this Section 4(l) 2 (including this sentence), (y) take any action which could reasonably be expected to require the Company or any of its affiliates to make a public announcement regarding this Agreement or the possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation the Transaction, or (z) without the prior consent of the Company and Scorpio, communicate with the Company's shareholders regarding the subject matter of this Agreement.
Appears in 1 contract
Sources: Exclusivity and Standstill Agreement (Nordic American Offshore Ltd.)
Standstill. The Buyer Purchaser hereby agrees thatthat neither it nor its Affiliates will (a) except as expressly provided for herein, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)acquire, unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer offer to acquire or Affiliate of the Buyer to, in any manneragree to acquire, directly or indirectly (including indirectly, by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly purchase or otherwise) to effect, any voting securities or announce any intention to effect direct or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or indirect rights or options to acquire any voting securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifCompany, after giving effect to any such acquisition(b) make, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregateany way participate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) directly or indirectly, in any "solicitation" of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect "proxies" to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” vote (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission), or seek to advise or influence any person or entity with respect to voting of any voting securities of the Company or vote in favor of any matter (including without limitation any acquisition transaction) that is opposed by the Board of Directors), (c) join a partnership, syndicate or consents to vote other group, or otherwise act in concert with any other person, for the purpose of acquiring, holding, voting or disposing of any voting securities of the Company;
, (iid) formdirectly or indirectly, join offer, sell or in transfer any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the voting securities of the Company at such time that a tender or any of the Subsidiaries exchange offer is pending or Company Controlled Affiliates;
(iii) has been announced or which has otherwise act, alone or in concert with others, been communicated to seek to control or influence the management, the board of directors or the policies Purchaser for outstanding voting securities of the Company that is opposed by the Board of Directors, or any of the Subsidiaries or Company Controlled Affiliates;
(ive) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Periodotherwise participate, directly or indirectly, publicly request in any acquisition transaction involving the Company that is not approved by the Board. Notwithstanding the foregoing sentence, in the event that the Company issues any New Securities of the type described in Section 4.11(b)(iii)(B) or (F), Purchaser and Permitted Transferees may acquire additional equity securities of the Company to the extent that, as a result of such acquisitions, the percentage of the shares of Common Stock held by such Purchaser or its directorsPermitted Transferees of the total number of shares of Common Stock outstanding after such acquisitions and the issuance of such New Securities (determined on a fully diluted basis assuming full exercise and conversion of all outstanding options, officerswarrants, employees rights and other securities which are convertible or agentsexchangeable for shares of Common Stock) to amend or waive any provision does not exceed the percentage of this Section 4(l) (including this sentence).the
Appears in 1 contract
Sources: Stock Purchase Agreement (American Bank Note Holographics Inc)
Standstill. The Buyer hereby agrees that(a) For so long as the Stockholder and the other Investors Beneficially Own Company Common Shares representing at least thirty-three percent (33%) of the Company Common Shares issued to the Stockholder pursuant to the Investment Agreements, during without the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by prior written consent of the Company, the Buyer will Stockholder shall not, and will not permit any director, officer or Affiliate shall cause each of the Buyer other Investors not to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(i) acquire, offer to acquire or agree to acquire Beneficial Ownership of Company Common Shares, except pursuant to share splits, reverse share splits, share dividends or distributions, or combinations or any similar recapitalizations on or after the date hereof or offerings made available to holders of Common Shares generally on a pro rata basis;
(ii) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate assist or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (Aa) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) material assets of the Company or any of the Subsidiaries its Affiliates, including rights or Company Controlled Affiliates ifoptions to acquire such ownership, after giving effect to in connection with any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) “change of control” of the shares of Common Stock then outstandingCompany; (b) initiate or propose any merger, (B) any tender or exchange offer, merger business combination, restructuring, recapitalization or other business combination involving extraordinary transaction involving, or any change of control of, the Company or any of the Subsidiaries its Subsidiaries; or Company Controlled Affiliates or any division or line of business of any thereof, (Cc) any recapitalization, restructuring, liquidation, dissolution shareholder proposal or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofmake, or (D) in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote, or seek to influence any Person with respect to the voting of, Company Common Shares, or become a “participant” in a “solicitation” (as such terms are used defined in Regulation 14A under the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) 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 Company Common Shares; provided that the securities of foregoing shall not restrict the Company Stockholder’s or any of the Subsidiaries or Company Controlled AffiliatesInvestor’s right to vote its Common Shares in its sole discretion;
(iii) otherwise actdeposit any Company Common Shares into a voting trust or subject Company Common Shares to any proxy, alone arrangement or agreement with respect to the voting of such securities or other agreement having a similar effect (other than (i) any agreement between the Stockholder and/or one or more Investors and (ii) a proxy provided to the management of the Company in concert connection with othersan annual or special meeting of shareholders);
(iv) initiate or propose a call for any special meeting of the Company’s shareholders;
(v) seek or propose to influence, to seek to advise, change or control or influence the management, the board of directors of the Company, governing instruments or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliatesits Subsidiaries;
(ivvi) take participate in any action which would acquisition of assets or would reasonably be expected to force business of the Company to make a public announcement regarding any or its Subsidiaries or Affiliates outside of the types ordinary course of matters set forth in clause (i) abovebusiness; or
(vvii) propose, or agree to, or enter into any discussions discussions, negotiations or arrangements with with, or provide any confidential information to, any third party with respect to any of the foregoing. .
(b) The Buyer further agrees that it shall not, and prohibition in Section 2.2(i) shall not permit any director, officer or Affiliate apply to ordinary course of business activities of the Buyer toStockholder, during each Investor or any of their respective Affiliates in connection with:
(i) proprietary and third party fund and asset management activities;
(ii) brokerage and securities trading activities;
(iii) financial services and insurance activities;
(iv) acquisitions made as a result of (A) a share split, share dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change or (B) in connection with securing or collecting indebtedness previously contracted in good faith and not with the Standstill Periodintention of circumventing the prohibition in Section 2.2(i); and
(v) acquisitions made in connection with a transaction in which the Stockholder, directly any of the Investors or indirectlyany of their respective Affiliates acquires a previously unaffiliated business entity that Beneficially Owns Company Common Shares, publicly request or any securities convertible into, or exercisable or exchangeable for, Company Common Shares, at the Company time of the consummation of such acquisition; provided that, in the case of each of (or its directors, officers, employees or agentsi) to amend or waive any provision through (v) of this Section 4(l) (including this sentence2.2(b), such ordinary course of business activities shall be made without the intent to influence the control of the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Renaissancere Holdings LTD)
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer a) Provided that nothing contained herein will not, and will not permit any director, officer prevent or Affiliate of the Buyer to, in any manner, directly or indirectly prohibit EIS from purchasing Voting Stock (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereofas defined below) of the Company pursuant to subsection 5(b) or any from acquiring Voting Stock pursuant to the conversion of the Subsidiaries Series A Preferred Stock or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually Note or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) exercise of the shares of Common Stock then outstandingWarrant in accordance with their respective terms, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall EIS will not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request without the prior consent of the Board of Directors of the Company (the "BOARD"), (i) acquire (or offer or agree to acquire) any Voting Stock; or (ii) enter into any merger, consolidation or similar transaction with the Company, unless, in the case of each of (i) and (ii), such transaction has been approved by the Board; provided, that the foregoing restrictions shall not be applicable in the event that any unaffiliated third party takes any such actions (in the case of share ownership, acquiring at least [****] % of the outstanding Common Stock, directly or indirectly). Notwithstanding the foregoing, EIS will not be obligated to dispose of any Voting Stock it owns if its directors, officers, employees or agentspercentage ownership is increased as a result of a decrease in the number of shares of Voting Stock outstanding.
(b) to amend or waive any provision The provisions of this Section 4(l5 will terminate: (i) if EIS owns less than ----------------------- [****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES ACT OF 1934, AS AMENDED. [****]% of the outstanding Voting Stock; (including ii) if any person or group, excluding EIS, any affiliate of Elan, or any group that includes Elan or any such affiliate, makes a BONA FIDE offer to acquire Voting Stock which would, if successful, result in the bidder's beneficial ownership of at least [****] % of the then outstanding Voting Stock; or (iii) upon the second anniversary of the date of this sentenceAgreement.
(c) The Company will give EIS prompt notice of the receipt by the Company of any written notice couched in such terms as to put the Company reasonably on notice of the likelihood that a person or group has acquired or is proposing to acquire an aggregate position of at least [****]% of the outstanding Voting Stock, the Company receiving any BONA FIDE offer to purchase or acquire [****]% or more of the Voting Stock or all or substantially all of the assets of the Company, and any Board determination to seek an acquirer for in excess of [****]% of the Voting Stock.
(d) EIS will cause its affiliates and associates to comply with the provisions of this Section 5, whether directly or indirectly, individually or as part of a "group" (as such term is defined in Rule 13d-5 under the Exchange Act). When used in this Section 5, the term EIS includes EIS together with its affiliates and associates.
Appears in 1 contract
Sources: Securities Purchase Agreement (Photogen Technologies Inc)
Standstill. The Buyer hereby agrees that, during the period commencing (a) Until 11:59 p.m. (Montréal time) on the Closing Date and ending on date that is two years from the second annual anniversary thereof (the “Standstill Period”)date hereof, unless specifically invited in writing by the Company, the Buyer ENI or any of its Affiliates will not, and will not permit any directoralone or in concert with others, officer without the prior written consent of NMG or Affiliate of the Buyer to, in any manner, directly as otherwise expressly permitted or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):contemplated under this Agreement:
(i) effect Purchase, acquire, or offer to purchase (except under the terms of the Subscription Agreement or any other subscription agreement entered into between ENI and NMG following the date hereof) any equity securities of NMG (including Common Shares), except pursuant to:
(1) a stock dividend or dividend-in-kind paid by NMG or a Subsidiary to all holders of Common Shares, including pursuant to any dividend reinvestment plan of NMG or a Subsidiary;
(2) a security-based compensation agreement;
(3) open market purchase of Common Shares following the FID Equity Offering, provided that, at any given time, the aggregate number of Common Shares purchased in all such transactions shall not be more than one percent (1%) of the number of issued and outstanding Common Shares at such time; or
(4) as otherwise permitted pursuant to Section 5(d);
(ii) effect, seek, offer or propose, or in any way advise or encourage any other Person to effect, seek, offer or propose (in each case, whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose ):
(whether publicly or otherwise) to effect or participate in, (A1) any acquisition take-over bid, merger, amalgamation, plan of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifarrangement, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger reorganization or other business combination involving the Company NMG or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, its assets; or
(C2) any recapitalization, restructuring, liquidation, dissolution dissolution, disposition of a material portion of the assets or other extraordinary transaction with respect to the Company NMG or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Companyits assets;
(iiiii) formdirectly or indirectly make, join or in any way participate in a “group” (within the meaning in, any solicitation of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) proxies to vote, or seek to advise or influence any other Person with respect to the voting of any voting securities of NMG;
(iv) otherwise act in a manner to seek to control the Company management, Board or the policies of NMG beyond the Board and committees representation provided in this Agreement;
(v) enter into any arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aide, encourage or act in concert with, any other Person in connection with any of the Subsidiaries or Company Controlled Affiliatesforegoing;
(iiivi) otherwise actmake any public announcement of any intention to do or take any of the foregoing or take any action that could require NMG to make a public announcement with respect to any of the foregoing; or
(vii) attempt to induce any party not to make or conclude any proposal with respect to NMG by threatening or indicating that ENI may take any of the foregoing actions.
(b) Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 6 shall no longer apply from the earliest of:
(i) The date that NMG enters into a definitive agreement with a third party that provides for (1) the acquisition by any means, including, without limitation, acquisition of equity, a statutory plan of arrangement, merger or business combination, by any Person, directly or indirectly, of more than 50% of the total voting power of the outstanding voting stock of NMG, (2) the date NMG enters into a definitive agreement with a third party that provides for an acquisition of all or substantially all of the assets of NMG, or (3) the date a third party, alone or in concert with others, enters into a definitive agreement to seek to control acquire, or influence acquires, directly or indirectly, more than 50% of the managementvoting securities of NMG; provided, however, that, in the event that the proposed transaction in (1), (2) or (3) is terminated, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliateslimitations and prohibitions set forth in Section 6(a) shall be reinstated;
(ivii) take any action which would or would reasonably be expected to force the Company to make The date NMG makes a public announcement regarding any the entering into of the types of matters set forth an agreement described in clause paragraph (i) above; orand
(viii) enter into any discussions or arrangements with any The date a third party with respect to publicly announces a plan that provides for any of the foregoing. change-of-control transactions indicated in paragraph (i) above.
(c) The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision provisions of this Section 4(l6 shall not apply to (i) an acquisition or the announcement of an acquisition of NMG shares occurring as a result of ENI’s acquisition of a third party that holds such shares, unless such acquisition is conducted solely for the purpose of avoiding the application of the provisions of this Section 6; and (including this sentence)ii) any confidential offer or proposal made by ENI or its Affiliates to the Board.
Appears in 1 contract
Sources: Investor Rights Agreement (Nouveau Monde Graphite Inc.)
Standstill. The Buyer hereby Each Seller agrees that, that during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer Interim Period it will not, and will cause its controlled Affiliates and the Representatives acting on its or any of its Affiliates behalf not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly indirectly, acting alone or in concert with others, unless specifically consented to in writing in advance by the Board of Directors of Micron:
(a) acquire or agree to acquire, or offer, propose or seek to acquire, directly or indirectly, by purchase or otherwise, ownership (including by directing beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any securities, assets or causing businesses of Micron or any of its Subsidiaries, or any direct or indirect rights or options to acquire such ownership (including from any other Person Person); provided, however, that is the foregoing shall not the Buyer prohibit or prevent any Seller from (i) acquiring any such securities pursuant to a directorstock split, officer stock dividend or Affiliate similar recapitalization of the Buyer):Micron, (ii) preserving its rights as a stockholder in Micron, including, without limitation, by participating in rights or subscription offerings offered to all Micron stockholders, (iii) exercising a Catch-Up Right pursuant to Section 7.26 or (iv) acquiring any securities or assets pursuant to Section 2.9);
(ib) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect (with or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Awithout conditions) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates ifmerger, after giving effect to any such acquisitionconsolidation, the Buyer and/or any Buyer Controlled Entity and/or Control Group Memberbusiness combination, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or involving Micron or any of the its Subsidiaries or Company Controlled Affiliates any of its or any division thereoftheir respective securities or assets;
(i) make, or (D) in any way participate in or encourage, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote Micron Voting Securities, (ii) seek to advise or influence any Person (other than any Affiliate of such Seller) with respect to the voting securities of any Micron Voting Securities (other than in accordance with and consistent with the recommendation of the CompanyBoard of Directors of Micron), or (iii) call or seek to have called any meeting of the holders of Micron Voting Securities (or securities convertible into, or exercisable or exchangeable for, Micron Voting Securities);
(iid) deposit any Micron Voting Securities in a voting trust or subject any Micron Voting Securities to any Contract with any Person with respect to the voting of such Micron Voting Securities, other than the Stockholder Rights and Restrictions Agreement;
(e) seek to place a representative on the Board of Directors of Micron, seek the removal of any member of the Board of Directors of Micron, or otherwise seek or propose to influence or control the Board of Directors, the management, or the policies of Micron; provided, however, that this clause (e) shall not limit the ability of any Seller to freely vote any Micron 4917039.19 Voting Securities in the election of directors to the Board of Directors of Micron, or the removal of directors therefrom, so long as such candidates for election were not nominated by, or such proposal for removal was not made by, such Seller or its controlled Affiliates or any Group or member of any Group of which any of them is a member;
(f) form, join or in any way participate in a “Group or other group” , or otherwise act in concert with any third Person (within other than any Affiliate of such Seller), for the meaning purpose of Section 13(d)(3acquiring, holding, voting or disposing of any Equity Securities of Micron;
(g) of the ▇▇▇▇ ▇▇▇) with respect assist, participate in, provide or arrange financing to the securities of the Company or for, solicit, encourage, induce or attempt to induce any effort or attempt by, or enter into any discussions, negotiations, arrangements or understandings with, any Person or Group to do or seek to do any of the Subsidiaries or Company Controlled Affiliatesforegoing;
(iiih) otherwise actdisclose any intent, alone purpose, plan or in concert with others, proposal to seek to control or influence the management, the board of directors or the policies of the Company or do any of the Subsidiaries or Company Controlled Affiliates;foregoing; or
(ivi) take any action which would or that would reasonably be expected to force the Company compel Micron to make a public announcement regarding any the possibility of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it Nothing in this Section 7.19 shall notbe deemed to prevent or otherwise limit or restrict the exercise of any rights or remedies available to a Seller or any Affiliate of a Seller under, in connection with, contemplated by or arising out of (i) this Agreement (including Section 2.2 and Section 2.5) or any Ancillary Agreement, (ii) any other agreement entered into on or prior to the date hereof between Micron and/or one or more of its Subsidiaries, on the one hand, and shall not permit such Seller and/or one or more of its Subsidiaries, on the other hand, including the following agreements as they may be amended by the parties thereto (provided, that Micron or one of its controlled Affiliates is a party to such amendment): (A) the Securities Purchase Agreement between Micron and Intel Capital Corporation dated September 24, 2003, and any directorother agreement or instrument entered into thereunder, officer including the Securities Rights and Restrictions Agreement of even date therewith between Micron and Intel Capital Corporation and the Stock Rights Agreement of even date therewith between Micron and Intel Capital Corporation; (B) the Securities Purchase Agreement between Micron and Intel dated October 19,1998, and any other agreement or Affiliate instrument entered into thereunder, including the Securities Rights and Restrictions Agreement of even date therewith between Micron and Intel and the Buyer toStock Rights Agreement of even date therewith between Micron and Intel; and (C) the Amended and Restated Limited Liability Operating Agreement of IM Flash Technologies, during LLC between Micron and Intel dated as of February 27, 2007 and any other operating agreement or similar Governing Documents of any Applicable Joint Venture (as defined in such Amended and Restated Limited Liability Operating Agreement) entered into pursuant to such Amended and Restated Limited Liability Operating Agreement, including the Standstill PeriodLimited Liability Partnership Agreement of IM Flash Singapore, directly LLP between Micron Semiconductor Asia Pte Ltd and Intel Technology Asia Pte Ltd dated as of February 27, 2007; or indirectly, publicly request (iii) the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).M6 Option Agreement. 4917039.19
Appears in 1 contract
Standstill. The Buyer hereby agrees that, during (a) From the period commencing on date hereof through the second anniversary of the PIPE Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by each Purchaser hereby agrees that neither such Purchaser nor any of its Affiliates will, without the prior written consent of the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
indirectly: (i) effect or seekeffect, offer or publicly propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assistknowingly advise, facilitate assist or encourage any other Person person to effect or seekeffect, offer or publicly propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of shares of Common Stock or of any rights, warrants or options to acquire, or securities convertible into or exchangeable or exercisable for, any shares of Common Stock (including derivative securities representing the right to vote or economic benefit of any shares of Common Stock), in each case, that would result in the Purchasers and their Affiliates jointly holding more than the total number of shares of Common Stock (or beneficial ownership thereof) or rights or options to acquire acquired by the Purchasers in the Share Sale (including any securities paid as part of the Commitment Fee), plus 5% of the total number of shares of Common Stock (or beneficial ownership thereof) pro forma for the Rights Offering and the Share Sale, in each case, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, that occur after the date hereof; (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, its subsidiaries; (C) any recapitalization, restructuring, liquidation, liquidation or dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, its subsidiaries; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECCommission) or consents to vote any voting securities of the Company;
; (ii) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the any securities of the Company or any of the Subsidiaries or Company Controlled (other than with each other and with their Affiliates;
); (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board Board of directors Directors or the management or policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
Company; (iv) take any action which would or that would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate Following the expiration of the Buyer toStandstill Period, the foregoing restrictions shall terminate and cease to be of any further force or effect.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time during the Standstill Period, directly a party that is not a Purchaser or indirectly, publicly request any of its Affiliates (i) enters into an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of, or (ii) commences a tender offer, which was approved by the Board of Directors and is made to all stockholders of the Company for, in each case, at least 50% of the outstanding capital stock of the Company or all or substantially all of the assets of the Company and its directorsSubsidiaries, officerstaken as a whole, employees or agents) to amend or waive any provision of then the restrictions set forth in this Section 4(l4.8 shall be suspended and cease to be of any further force or effect until the expiration or termination of such agreement or tender offer or until the public announcement of its withdrawal or abandonment.
(c) (including Notwithstanding the foregoing, nothing in this sentence)Section 4.8 shall be construed to prevent any Purchaser from making any non-public proposal or offer regarding a transaction of the type that would otherwise be prohibited by Section 4.8(a) directly to the Board of Directors.
Appears in 1 contract
Standstill. The Buyer hereby Investor agrees that, during that for so long as Investor beneficially owns Common Shares and/or Series A Preferred Shares (including shares underlying the period commencing Warrant) representing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer toan as converted basis, in any mannerthe aggregate, at least 782,828 Common Shares, neither it nor its Affiliates will, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or prior written consent of a director, officer or Affiliate majority of the Buyer):
Board of Directors of the Company (other than the nominees or designees or the Investor), (i) effect or seekacquire, offer or propose (whether publicly or otherwise) agree to effectacquire, or announce make any intention proposal to effect or cause or participate in acquire or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose participate in a "group" (whether publicly or otherwisewithin the meaning of Section 13(d)(3) of the Exchange Act) to effect or participate indo any of the foregoing, (A) any acquisition of any equity securities (other than the shares of Series A Preferred Stock and the Warrants or beneficial ownership thereof) any shares of capital stock issuable upon the conversion or rights or options to acquire any securities (or beneficial ownership exercise thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofCompany, or (Dii) make, or in any “way participate in any "solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the SECSecurities Exchange Commission) or consents to vote any voting securities of the Company (other than in connection with the solicitation of proxies by the Board of Directors of the Company;
, or as contemplated by the Voting Agreement); provided, however, that the agreements of Investor set forth in this Section 5.7 shall not apply (iiA) formfollowing the breach by the Company of any of the covenants set forth in Section 4.5, join upon which breach such agreements of the Investor shall be of no further force and effect; (B) in the event that any of the following events occurs and such event has not been endorsed or in supported by the Board of Directors of the Company within ten (10) Business Days of the earlier of its occurrence or the receipt by the Board of Directors of notice of its anticipated occurrence: (x) the acquisition by any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) of 20% of any class of equity securities of the Company, (y) the solicitation of proxies by any Person or group (other than Investor or the Board of Directors of the Company) or (z) the public announcement of any of the foregoing, or of any intent to engage in the foregoing, in which event the Investor shall be permitted to make a proposal to the disinterested members of the Board of Directors of the Company with respect to the securities of the Company an acquisition or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth solicitation described in clause (i) or (ii) above; or
(vC) enter into (x) to the extent of any discussions sales or arrangements transfers of Common Shares by any of the parties to the Voting Agreement (other than the Investor) or any of their transferees to any Person not subject to the Voting Agreement, and the Investor shall be permitted to acquire and/or solicit for the acquisition of Common Shares up to the aggregate amount of any such sales or transfers, or (y) upon the material breach of the Voting Agreement by any of the parties thereto (other than the Investor), (1) upon which material breach, if arising from the failure of the breaching party to vote such party's shares in accordance with the provisions of the Voting Agreement and the Investor is unable to exercise its proxy with respect to such shares, the Investor shall be entitled to purchase the number of Common Shares equal to the percentage of ownership of the outstanding capital stock of the Company (including the Common Shares underlying the Warrant) owned by such breaching party or parties immediately following the date of this Agreement (or as of the date any third such breaching party acquired its Common Shares if the breaching party is a transferee of a party to the Voting Agreement which transferee agreed to bound by the Voting Agreement), or (2) upon which material breach, if arising from the sale or other transfer of Common Shares by the breaching party in violation of the provisions of the Voting Agreement, the Investor shall be entitled to purchase the number of Common Shares equal to the aggregate amount of any such sales or transfers; or (D) in the event of any issuances of voting securities of the Company other than to current or former officers, employees, directors or consultants of the Company or its wholly owned Subsidiaries pursuant to the Option Plans or future stock option plans of the Company approved by the Board of Directors of the Company or pursuant to the Employment Agreements and Exchange Agreements listed at Section 3.2(c)(iii)(B) through (G) of the Disclosure Schedule, in which event the Investor shall be able to acquire and/or solicit for the acquisition of voting securities of the Company (including Common Shares) such that the Investor's total ownership of the Company is equal to the sum of (1) the number of Common Shares equal to twenty-three percent (23%) of the outstanding capital stock of the Company (including the Common Shares underlying the Warrant) PLUS (2) the number of Common Shares equal to the excess of twenty-four percent (24%) over the percentage of ownership of the outstanding capital stock of the Company (including the Common Shares underlying the Warrant) owned by the stockholders of the Company who are parties to the Voting Agreement (or any transferees of such stockholders who have agreed to the terms of the Voting Agreement) following the issuance of the voting securities referenced at the beginning of this clause (D). In the event that the Investor acquires shares pursuant to the provisions of clause (C) or (D)(2) in the preceding paragraph, the Investor agrees that, with respect to any vote of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate shareholders of the Buyer toCompany other than a vote involving the election, during replacement, removal or disqualification of any person nominated by the Standstill PeriodInvestor pursuant to Section 4.5(e) hereof, directly or indirectly, publicly request it will vote the excess number of (X) Common Shares beneficially owned by the Investor OVER (Y) the number of Common Shares representing the percentage of ownership of the fully diluted capital stock of the Company (or its directors, officers, employees or agents) to amend or waive any provision represented by the Purchased Securities as of the date of this Section 4(l) Agreement (including including, without limitation, the Common Shares underlying the Warrant), as if the Purchased Securities had been issued to the Investor as of the date of this sentence)Agreement, PRO RATA in accordance with the votes of the other holders of Common Shares of the Company.
Appears in 1 contract
Standstill. The Buyer hereby From the date hereof until the third anniversary of the date of this letter, N▇▇▇▇ agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will notnot to, and will to cause any person or entity controlled by him not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not indirectly, without the Buyer or a director, officer or Affiliate prior written consent of the Buyer):
Parent: (i) effect in any manner acquire, agree to acquire or seekmake any proposal or offer to acquire, directly or indirectly, by purchase, merger, joint venture, business combination, tender offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) direct or indirect rights or options to acquire any securities (of Parent, the Company, any of their respective subsidiaries or beneficial ownership thereof) of any non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of the Subsidiaries their respective subsidiaries or Company Controlled Affiliates ifaffiliates, after giving effect to or any such acquisitionassets of Parent, the Buyer and/or Company or their respective subsidiaries or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninetynon-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger traded real estate investment trust or other business combination involving pooled investment vehicle sponsored or advised by Parent, the Company or any of the Subsidiaries their respective subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, affiliates; (Cii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofmake, or (D) in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote, or consents seek to vote advise or influence any person or entity with respect to the voting of any voting securities of Parent, the Company;
(ii) form, join any of their respective subsidiaries or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of non-traded real estate investment trust or other pooled investment vehicle sponsored or advised by Parent, the Company or any of the Subsidiaries their respective subsidiaries or Company Controlled Affiliates;
affiliates; (iii) otherwise actenter into any arrangements, alone understandings or agreements (whether written or oral) with a third party, or advise, assist or encourage, any other third party in concert connection with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries foregoing; or Company Controlled Affiliates;
(iv) take request that Parent amend, waive or terminate any action which provision of this paragraph if such request would or would reasonably be expected to force the Company require Parent to make a public announcement regarding of the foregoing; provided, however, that the restrictions contained in this Section 11 (i) shall cease to apply upon the termination of the ARCP Merger Agreement in accordance with its terms (provided that such termination is not as a result of or otherwise related to any breach of this Section 11), and (ii) prior to the consummation of the ARCP Transaction shall not prohibit or otherwise restrict N▇▇▇▇’▇ exercise of his fiduciary duties under applicable law in his capacity as a director or officer of any of the types of matters set forth entities described in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)11.
Appears in 1 contract
Sources: Agreement and Plan of Merger (American Realty Capital Properties, Inc.)
Standstill. The Buyer hereby agrees that, during Except for the period commencing on exercise of the Dynavax Closing Date Warrants (as defined in the Amended and ending on the second annual anniversary thereof (the “Standstill Period”Restated Purchase Option Agreement), unless specifically invited the acquisition of Dynavax Closing Warrant Shares (as defined in writing by the Amended and Restated Purchase Option Agreement), the acquisition of the Dynavax Promissory Note Shares (as defined in the Amended and Restated Purchase Option Agreement) and the acquisition of Alternate Securities (as defined in the Amended and Restated Purchase Option Agreement), if any, for so long as the Purchaser and its Affiliates Beneficially Own more than 10% of the Company’s outstanding Common Stock, neither the Buyer will notPurchaser nor any of its Affiliates shall, and will not permit any director, officer or Affiliate without the prior written consent of a majority of the Buyer toindependent members of the Board who are not Affiliated with the Purchaser, in any manner, whether directly or indirectly (including by directing or causing any other Person that is not the Buyer or a directorindirectly: Section 24A. make, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or initiate, cause or participate in (i) any acquisition of Beneficial Ownership of any securities of the Company or in any way assist, facilitate securities of any subsidiary or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inAffiliate of the Company, (Aii) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) assets of the Company or any assets of any subsidiary or other Affiliate of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingCompany, (Biii) any tender or offer, exchange offer, merger or other merger, business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofcombination, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any subsidiary or other Affiliate of the Subsidiaries Company, or involving any securities or assets of the Company Controlled Affiliates or any division thereofsecurities or assets of any subsidiary or other Affiliate of the Company, or (Div) any “solicitation” of “proxies” (as such those terms are used in the proxy rules of the Securities and Exchange Commission (“SEC”)) or consents with respect to vote any voting securities of the Company;
(ii) ; Section 24B. form, join or in any way participate in a “group” (within as defined in the meaning of Section 13(d)(3) of Securities Exchange Act and the ▇▇▇▇ ▇▇▇rules promulgated thereunder) with respect to the Beneficial Ownership of any securities of the Company or Company; Section 24C. without limiting any rights of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise Purchaser pursuant to Section 6 hereof, act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).
Appears in 1 contract
Sources: Purchase Option Agreement (Dynavax Technologies Corp)
Standstill. The Buyer hereby agrees thatWithout the prior approval of the Company, during the period commencing on from the Closing Date and ending on until the second annual twenty-four (24) month anniversary thereof (of the “Standstill Period”), unless specifically invited in writing by the CompanyClosing Date, the Buyer Investor agrees that it will not, and will not permit any director, officer or Affiliate of the Buyer to, in any mannercause its Affiliates to not, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seekpurchase, offer or propose (whether publicly or otherwise) to effectpurchase, or announce agree to purchase or otherwise acquire beneficial ownership (as determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any intention Common Stock, or any securities convertible or exchangeable into Common Stock, excluding any shares of Common Stock acquired pursuant to effect or cause or participate in or in any way assistthe Transaction Agreements;
(b) make, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition solicitation of proxies to vote any voting securities of the Company or any of its subsidiaries, or propose to change or control the management or board of directors of the Company by use of any public communication to holders of securities intended for such purpose; provided, however, that nothing in this Section 10.2 shall limit the Investor’s ability to vote or transfer (subject to Section 10.1) its Common Stock;
(c) make a public proposal for a change of control transaction, including a merger, consolidation or beneficial ownership thereof) other business combination transaction or rights or options to acquire any securities (or beneficial ownership thereof) tender offer related thereto, of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofCompany’s subsidiaries, or (D) any “solicitation” the purchase of “proxies” (as such terms are used in the proxy rules all or substantially all of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any the assets of the Subsidiaries or Company Controlled Affiliatesand its subsidiaries;
(iiid) otherwise actknowingly encourage, alone accept, or in concert with otherssupport a tender, to seek to control exchange, or influence offer proposal by any Person other than the managementInvestor, the board consummation of directors or the policies which would result in a Change of Control of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveCompany; or
(ve) enter into Notwithstanding the foregoing restrictions, this Section 10.2 shall terminate and be of no further force and effect in the event of (i) a tender offer or exchange offer by a Person other than the Investor that has not been rejected by the Company’s Board of Directors, and if consummated, would constitute a Change of Control of the Company, (ii) an issuer tender offer by the Company, or (iii) the Company publicly announces a definitive agreement to consummate an Acquisition Transaction; provided, this Section 10.2 shall be reinstated and apply in full force according to their terms if any discussions event set forth in this Section 10.2, which resulted in the termination of this Section 10.2 is not completed or arrangements with any third party with respect if such announced transaction is abandoned and no similar transaction has been announced and not abandoned. Upon reinstatement of the provisions of Section 10.2, the provisions of this Section 10.2 shall continue to govern in the event that any of the foregoingevents described in this Section 10.2 shall occur. The Buyer further agrees that it shall not, and shall not permit Notwithstanding any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any other provision of this Section 4(l) (including this sentence)10.2, the Investor shall have the right to make a non-public proposal directly to the Chief Executive Officer of the Company for an Acquisition Transaction or a tender offer involving a Change of Control of the Company.
Appears in 1 contract
Sources: Share Purchase Agreement (Scholar Rock Holding Corp)
Standstill. The Buyer As of the date hereof, you hereby agrees represent and warrant to the Company that neither you nor any of your Representatives or affiliates acting on your behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with respect to the Company or its securities, owns any securities of the Company except as set forth on a Schedule 13D filed with the Securities and Exchange Commission prior to the date hereof. You agree that, during for a period of twelve (12) months from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this letter agreement, unless specifically invited in writing or approved by the Board of Directors of the Company, the Buyer will not, and will not permit neither you nor any director, officer of your affiliates or Affiliate subsidiaries or Representatives acting on your behalf or on behalf of other persons acting in concert with you with respect to any of the Buyer to, matters set forth in this paragraph will in any manner, directly or indirectly indirectly: (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(ia) effect or seek, publicly offer or propose (whether publicly or otherwise) to effect, or publicly announce any intention to effect or cause or or, participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, publicly offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or affiliates or assets of the Company Controlled Affiliates or any division the subsidiaries or line affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
its affiliates; (iiib) otherwise act, alone or in concert with others, to seek to control or influence additional representation on the management, the board Board of directors or the policies Directors of the Company or any of the Subsidiaries or Company Controlled Affiliates;
Company; (ivc) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (vd) enter into any discussions or arrangements with any third party with respect to taking any of action prohibited by the foregoing. The Buyer further agrees You also agree during such period not to request (to the extent in a manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). Notwithstanding the foregoing, the provisions of the foregoing paragraph shall not apply to sales of equity securities of the Company by you pursuant to a written trading plan pursuant to Rule 10b5-1 under the Exchange Act of 1934, as amended, in effect as of the date hereof and the provisions of the foregoing paragraph shall no longer be in force and effect if, after the date hereof, (i) any person (A) becomes the beneficial owner of 50% or more of the outstanding equity securities of the Company entitled to vote in the normal course in the election of the Company’s Board of Directors (“Equity Securities”) or (B) commences a tender or exchange offer which, if consummated, would make such person (or any of its affiliates) the beneficial owner of more than 50% of the Equity Securities and the Board of Directors of the Company does not, within 10 business days after the commencement of such offer (or at any time thereafter at which it publicly takes a position with respect to such offer), recommend against stockholders tendering their shares in such offer or (ii) the Company enters into a definitive agreement with a third party to effectuate (A) a sale of assets of the Company representing more than 50% of the consolidated earning power of the Company and its wholly-owned subsidiaries or (B) a transaction not covered by the foregoing clause (A) that, in whole or in part, requires the approval of the Company’s stockholders (a “Business Combination”), unless in the case of the Business Combination, it can be determined (based on information publicly available at the time of announcement of the entering into of such agreement) that, immediately following such Business Combination, at least 50% of the Equity Securities of either (1) the corporation resulting from such Business Combination (the “Surviving Corporation”) or (2) if applicable, the ultimate parent corporation that directly or indirectly has beneficial ownership of all of the outstanding Equity Securities of the Surviving Corporation, will be represented by the Equity Securities that were outstanding immediately prior to such Business Combination (or, if applicable, will be represented by shares into which such Equity Securities were converted pursuant to such Business Combination). Notwithstanding anything to the contrary herein, nothing shall prohibit the receipt from the Company of equity awards as compensation for services as a member of the Board of Directors of the Company or the acquisition of shares of the Company’s common stock as a result of the vesting and/or settlement of any such awards.
Appears in 1 contract
Standstill. The Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine four and ninety-nine one hundredths percent (9.994.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including 4(o)(including this sentence).
Appears in 1 contract
Sources: Securities Purchase Agreement (Meta Financial Group Inc)
Standstill. The Buyer hereby (a) Counterparty acknowledges and agrees that the Company is as of the Closing, or may become, a public company, trading on the Nasdaq Stock Market, the New York Stock Exchange, the OTC Markets, or another securities exchange or trading platform.
(b) Counterparty agrees that, during for as long as any information, including Confidential Information, continues to meet the period commencing on the Closing Date and ending on the second annual anniversary thereof definition of Material Non-Public Information (as defined below) as set forth herein (the “Standstill Period”), unless specifically invited in writing by the Company, the Buyer will Counterparty shall not, and will not permit any director, officer or Affiliate Counterparty shall ensure that none of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):its Representatives shall:
(i) effect buy or sell any securities or derivative securities of or related to the Company, or any interest therein;
(ii) undertake any actions or activities that would reasonably be expected to result in a violation of the Securities Act of 1933, as amended, or the rules and regulations thereunder, or of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including, without limitation, Section 10(b) thereunder, or the rules and regulations thereunder, including, without limitation, Rule 10b-5 promulgated thereunder;
(iii) effect, seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way assist, facilitate or encourage assist any other Person corporation, partnership, group, individual or other entity (each, a “Person”) to effect or effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (A1) any acquisition of any securities (or beneficial ownership thereof) or rights all or options to acquire any securities (or beneficial ownership thereof) substantially all of the assets of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (B2) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereofits subsidiaries, (C3) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofits subsidiaries, or (D4) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
(iiiv) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Exchange Act) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(iiiv) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the Company or its securities or assets;
(vi) otherwise act, alone or in concert with others, to seek to control or influence the management, the board Board of directors Directors or the policies of the Company or any of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivvii) take any action which would or would reasonably be expected to might force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) aboveSection 5(b)(iii); or
(vviii) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further .
(c) Counterparty also agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly Period not to request the Company (or its directors, officers, employees or agents) ), directly or indirectly, to amend or waive any provision of this Section 4(l) 5 (including this sentence).
Appears in 1 contract
Sources: Asset Purchase Agreement (Global Arena Holding, Inc.)
Standstill. The Buyer As of the date hereof, you hereby agrees represent and warrant to the Company that you, your Representatives, your affiliates, and all persons with whom any of the foregoing may be deemed to be acting in concert with respect to the Company or its securities, do not own, in the aggregate, in excess of 5% of the securities of the Company. You agree that, during for a period of twelve (12) months from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this letter agreement, unless specifically invited agreed to in writing by the Board of Directors of the Company, the Buyer neither you nor any of your affiliates or subsidiaries or Representatives acting on your behalf or on behalf of other persons acting in concert with you will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including except as contemplated by directing any definitive agreement entered into by you (or causing any other Person that is not an affiliate) and the Buyer or a director, officer or Affiliate of the Buyer):
Company): (ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingaffiliates, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or affiliates or assets of the Company Controlled Affiliates or any division the subsidiaries or line affiliates constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries or affiliates, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries its subsidiaries or Company Controlled Affiliates or any division thereofaffiliates, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the Company;
Company or any of its affiliates; (iib) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of as defined under the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliates;
any such securities; (iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries or Company Controlled Affiliates;
Company; (ivd) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or
or (ve) enter into any discussions or arrangements with any third party with respect to taking any of action prohibited by the foregoing. The Buyer further agrees You also agree during such period not to request (in any manner that it shall not, and shall not permit would reasonably be likely to cause the Company to disclose publicly) that the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). Notwithstanding the foregoing, the provisions of the foregoing paragraph shall no longer be in force and effect if, after the date hereof, (i) any person (A) becomes the beneficial owner of 50% or more of the outstanding equity securities of the Company entitled to vote in the election of the Company’s Board of Directors (“Equity Securities”) or (B) commences a tender or exchange offer which, if consummated, would make such person (or any of its affiliates) the beneficial owner of more than 50% of the Equity Securities and the Board of Directors of the Company does not, within 10 business days after the commencement of such offer, recommend against stockholders tendering their shares in such offer or (ii) the Company enters into a definitive agreement with a third party to effectuate (A) a sale of assets of the Company representing more than 50% of the consolidated earning power of the Company and its wholly-owned subsidiaries or (B) a transaction not covered by any of the foregoing clauses that, in whole or in part, require the approval of the Company’s stockholders (a “Business Combination”), unless in the case of the Business Combination, it can be determined (based on information publicly available at the time of announcement of the entering into of such agreement) that, immediately following such Business Combination, at least 50% of the Equity Securities of either (1) the corporation resulting from such Business Combination (the “Surviving Corporation”) or (2) if applicable, the ultimate parent corporation that directly or indirectly has beneficial ownership of all of the outstanding Equity Securities of the Surviving Corporation, will be represented by the Equity Securities that were outstanding immediately prior to such Business Combination (or, if applicable, will be represented by shares into which such Equity Securities were converted pursuant to such Business Combination).
Appears in 1 contract
Standstill. The Each Buyer hereby agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing by the Company, the such Buyer will not, and will not permit any director, officer or Affiliate of the such Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the such Buyer or a director, officer or Affiliate of the Buyersuch Buyer to):
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the its Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer Buyers and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the its Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the its Subsidiaries or Company Controlled AffiliatesAffiliates (it being understood that this provision shall not prevent any coordinated activity between or among each of the Buyers hereof);
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the its Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Each Buyer further agrees that it shall not, and shall not permit any director, officer or orco Affiliate of the such Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l4(i) (including this sentence).
Appears in 1 contract
Sources: Securities Purchase Agreement (Meta Financial Group Inc)
Standstill. The Buyer hereby agrees As of the date hereof, B▇▇▇ Capital Partners, LLC does not beneficially own (as such term is used in Rule 13d-3 under the Act, and including any right to acquire beneficial ownership, whether within sixty (60) days or any longer or shorter period of time) any securities of the Company or own any securities that derive their value in whole or in part from or by reference to the value of Company securities. You agree that, during for a period of eighteen (18) months from the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”)date of this letter agreement, unless specifically invited in writing by the Company, the Buyer neither you nor any of your Informed Affiliates (nor any person acting at your or their direction) will not, and will not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly (including by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):indirectly:
(ia) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (Ai) any acquisition of any securities (or beneficial ownership thereof) ), or rights or options to acquire any securities (or beneficial ownership thereof) ), or any assets, indebtedness or businesses of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstandingits subsidiaries, (Bii) any tender or exchange offer, merger or other business combination involving the Company or Company, any of the Subsidiaries subsidiaries or assets of the Company Controlled Affiliates or any division or line the subsidiaries constituting a significant portion of business the consolidated assets of any thereofthe Company and its subsidiaries, (Ciii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereofits subsidiaries, or (Div) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SECSecurities and Exchange Commission) or consents to vote any voting securities of the CompanyCompany or any of its subsidiaries;
(iib) form, join or in any way participate in a “group” (within as defined in the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇Act) with respect to the securities of the Company or otherwise act in concert with any person in respect of the Subsidiaries or Company Controlled Affiliatesany such securities;
(iiic) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board Board of directors Directors, or the policies of the Company or any to obtain representation on the Board of Directors of the Subsidiaries or Company Controlled AffiliatesCompany;
(ivd) take any action which would would, or would reasonably be expected to to, force the Company to make a public announcement regarding any of the types of matters set forth in clause (ia) above; or;
(ve) disclose any intention, plan or arrangement inconsistent with the foregoing;
(f) enter into any discussions discussions, negotiations, understandings or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees ; or
(g) request that it shall not, and shall not permit the Company or any director, officer or Affiliate of the Buyer to, during the Standstill Periodits Representatives, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) paragraph (including this sentence). You further agree that, if at any time during such period, a member of your Deal Team (as hereinafter defined) is approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or business of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction and the parties involved; provided, however, that if you do not engage in discussions with any such third party, you are not obligated to inform us of such contact; and provided further, that in the event that (i) you have indicated to the Company that you are no longer interested in pursuing a Possible Transaction or (ii) complied with a request to return or destroy Evaluation Material in accordance with Section 3(b) above, the requirements of this sentence shall no longer be operative and shall be of no further force or effect. Your “Deal Team” includes those of your officers, directors and employees who receive Evaluation Material or Discussion Information; provided, however, that the Company acknowledges that (i) in order to evaluate the Possible Transaction, you may supply Evaluation Material or Discussion Information to those members of your senior and executive management, finance committee and legal and compliance personnel customarily involved in the approval or participation in transactions such as the Possible Transaction (such individuals acting in such capacity, “Over The Wall Individuals”), and (ii) none of the Over The Wall Individuals shall be considered a member of your Deal Team for the purposes hereof. Notwithstanding anything to the contrary, nothing in this letter agreement shall prohibit you or your Informed Affiliates from disposing of any securities of the Company which it currently holds.
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Standstill. The Buyer hereby (a) Each Stockholder agrees that, during prior to the period commencing on third anniversary of the Closing Date Closing, without Disinterested Director Approval, it shall not, and ending on shall cause its Affiliates not to, directly or indirectly as part of a “group” (as such term is applied under Section 13(d) of the second annual anniversary thereof (the “Standstill Period”Exchange Act), unless specifically invited alone or in writing concert with any other Person, effect or enter into any agreement to effect, any acquisition of (or obtaining any right to direct the voting or disposition of) any Company Securities, or rights or options to acquire (or obtain any right to direct the voting or disposition of) any Company Securities, in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions pursuant to any agreement, arrangement or understanding or otherwise; provided that, notwithstanding the foregoing, nothing in this Section 3.03(a) shall restrict, prevent or otherwise limit (A) any acquisition of any Company Securities as contemplated by Section 3.03(b), (B) any issuance of options or other equity awards granted to officers or directors of the Company that is authorized and approved by the Remuneration and Nomination Committee of the Board, (C) the participation by the Stockholders and their Affiliates in any issuance of Company Securities by the Company that is made pro rata to all stockholders of the Company (including, in the case of any rights offering made by the Company, the Buyer will exercise of any oversubscription privilege made available to all holders of Common Stock on the same terms); (D) any acquisition of Company Securities that does not result in the percentage of the Voting Power of the Company Beneficially Owned by the Stockholders and their Affiliates immediately after such acquisition being higher than the percentage of the Voting Power of the Company Beneficially Owned by the Stockholders and their Affiliates as of the Closing (the “Closing Voting Power Percentage”) or (E) if the Stockholders acquire pursuant to the Offer Beneficial Ownership of at least 75,471,655 shares of Common Stock, any acquisition of Company Securities which is settled on an established securities exchange or through privately negotiated transactions, so long as such acquisition does not cause the percentage of the Voting Power of the Company Beneficially Owned by the Stockholders and their Affiliates immediately following such acquisition to exceed an amount equal to the Closing Voting Power Percentage plus 9%. For the avoidance of doubt, prior to the third anniversary of the Closing any acquisition of Company Securities through a tender or exchange offer may only be effected with Disinterested Director Approval.
(b) Each Stockholder agrees that, for so long as this Agreement is in effect, it shall not, and will shall cause its Affiliates not permit any director, officer or Affiliate of the Buyer to, in any manner, directly or indirectly as part of a “group” (including by directing as such term is applied under Section 13(d) of the Exchange Act), alone or causing in concert with any other Person that is not the Buyer or a directorPerson, officer or Affiliate of the Buyer):
(i) effect or seek, offer or offer, propose (whether publicly or otherwise) or enter into any agreement to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or otherwise participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitationRule 13e-3 transaction” of “proxies” (as defined in Rule 13e-3 under the Exchange Act unless such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) with respect to the securities of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, transaction is conditioned on both Disinterested Director Approval and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence)Minority Stockholder Approval.
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Sources: Stockholders Agreement (Coty Inc.)
Standstill. The Buyer hereby Each member of the Henry Group agrees that, during the period commencing on the Closing Date and ending on the second annual anniversary thereof (the “Standstill Period”), unless specifically invited in writing neither he or ▇▇ ▇ill, and he or it will cause each of his or its Affiliates or agents or other persons acting on his or its behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to:
(a) submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the Company, SEC under the Buyer will notExchange Act or otherwise) or any notice of nomination or other business for consideration, and will not permit nominate any director, officer candidate for election to the Board or Affiliate of oppose the Buyer to, in any manner, directly or indirectly (including directors nominated by directing or causing any other Person that is not the Buyer or a director, officer or Affiliate of the Buyer):Board.
(ib) effect or seekform, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate join in or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof) or rights or options to acquire any securities (or beneficial ownership thereof) of the Company or any of the Subsidiaries or Company Controlled Affiliates if, after giving effect to any such acquisition, the Buyer and/or any Buyer Controlled Entity and/or Control Group Member, either individually or in the aggregate, would beneficially own more than nine and ninety-nine one hundredths percent (9.99%) of the shares of Common Stock then outstanding, (B) any tender or exchange offer, merger or other business combination involving the Company or any of the Subsidiaries or Company Controlled Affiliates or any division or line of business of any thereof, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of the Subsidiaries or Company Controlled Affiliates or any division thereof, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company;
(ii) form, join or in any way participate in a “"partnership, limited partnership, syndicate or other group” (" within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other members of the Henry Group or one or more Affiliates of a member of the Henry Group ▇▇▇▇ respect to the Common Stock currently owned as set ▇▇▇▇▇ in Section 2(c) of this Agreement 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;
(c) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any "solicitation" of any "proxy" within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a "participant" in any contested "solicitation" for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act), other than a "solicitation" or acting as a "participant" in support of all of the nominees of the Board (including David W. Wright) at the 2006 Annual Meeting of Shareholders and each ▇▇▇▇▇▇▇▇▇▇ ▇▇▇) ual meeting of shareholders with respect to which the securities of the Company or any of the Subsidiaries or Company Controlled AffiliatesBoard has nominated David W. Wright, respectively;
(iii) otherwise act, alone or in concert with others, to seek to control or influence the management, the board of directors or the policies of the Company or any of the Subsidiaries or Company Controlled Affiliates;
(iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or
(v) enter into any discussions or arrangements with any third party with respect to any of the foregoing. The Buyer further agrees that it shall not, and shall not permit any director, officer or Affiliate of the Buyer to, during the Standstill Period, directly or indirectly, publicly request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Section 4(l) (including this sentence).
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