Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others: (i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise); (ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement; (iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation; (iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act; (v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company); (vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise; (vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; (viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement; (ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or (x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications. (b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board. (c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 3 contracts
Sources: Shareholder Agreement (PW Partners Atlas Fund II, LP), Shareholder Agreement (Luxor Capital Group, LP), Shareholder Agreement (BJs RESTAURANTS INC)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each members of the Luxor Shareholders solely on behalf of itself Greenway Group agrees that, during the Standstill Period, and provided that Company has complied and is complying with its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in obligations under this Agreement, neither he or it nor any of its Affiliates or Associates willwill not, 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 cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(ia) 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, other than as expressly permitted by this Agreement;
(b) 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 Greenway Group or one or more Affiliates of a member of the Greenway Group with respect to the Common Stock currently owned as set forth 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, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)2010 Annual Meeting and 2011 Annual Meeting;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this AgreementBoard, any such groupto call, or to request the call of, a “Section 13(d) Group”) with any persons (other thanspecial meeting of the shareholders of the Company, with respect or seek to PW Group/Luxor/▇▇▇▇▇▇ Shareholdersmake, or make, a Section 13(d) Group that includes all or some shareholder proposal at any meeting of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereofCompany, except as expressly set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(ive) effect or seek to effect effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any of their respective securities (each, an “Extraordinary Transaction”), other governmental agency or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect disclosure to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a journalist, member of the Company’s current media or previous managementsecurities analyst) of, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Boardobtain any waiver, the Companyor consent under, its management, policies or affairsany amendment of, any of its securities or assets the provisions of Section 4(d) or this Agreement Section 5, or otherwise seek (in any manner that is inconsistent with would require public disclosure by any of the provisions members of the Greenway Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(ixg) enter into any discussionsarrangements, negotiations, understandings or agreements (whether written or understandings with any Third Party with respect to any of the foregoingoral) with, or advise, assistfinance, knowingly encourage assist or seek to persuade encourage, any Third Party to take any action or make any statement with respect to any of the foregoingother person that engages, or otherwise take offers or cause any action or make any statement inconsistent with proposes to engage, in any of the foregoing; or
(xh) publicly request, directly take or indirectly, cause or induce or assist others to take any amendment or waiver action inconsistent with any of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 2 contracts
Sources: Board Nomination Agreement (SRB Management, L.P.), Nomination Agreement (Dusa Pharmaceuticals Inc)
Standstill. (a) Each member of the PW Blue Clay Group Shareholders solely on behalf agrees that during the Covered Period, unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates, each a majority of the Luxor Shareholders solely on behalf of itself Company’s directors not including the Blue Clay Designee, it shall not, and its respective Affiliates and Associates and shall cause each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “Blue Clay Affiliates,” provided that no portfolio company of the Blue Clay Group shall be deemed a “Blue Clay Affiliate” so long as such portfolio company (i) has not received from the Blue Clay Group or the Blue Clay Designee information concerning the Company or its business, and it will cause each (ii) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the Blue Clay Group or the Blue Clay Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not Blue Clay Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Blue Clay Group (together with their Affiliates and Associates and the Blue Clay Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.012.9% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe Blue Clay Group and the Blue Clay Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial or other ownership interest of such persons, collectively with their the Blue Clay Group and the Blue Clay Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such 12.9% limitation;
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Blue Clay Group or any Blue Clay Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, (D) a Blue Clay Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9% in the aggregate of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the Blue Clay Group or an a Blue Clay Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the Blue Clay Group or an a Blue Clay Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders member of the Blue Clay Group or a Blue Clay Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates management has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(vvi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vivii) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 302A.461 of the California Corporations Code MBCA or otherwise;
(viiviii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) except as necessary to enforce the provisions of this Agreement, commence or threaten any litigation against the Company, or commence or threaten, derivatively on behalf of the shareholders, any litigation against any of the Company’s officers and directors;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xxii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Blue Clay Group or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, At each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special annual shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period Period, each member of the PW Blue Clay Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall make commercially reasonable efforts to cause all shares of Common Stock beneficially owned, directly or indirectly, by it as to be present for quorum purposes and to be voted and further agrees that it shall make commercially reasonable efforts to vote in favor of the applicable record date Company Slate. At any special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period, each member of the Blue Clay Group shall make commercially reasonable efforts to cause all shares of Common Stock beneficially owned, directly or indirectly, by it to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements Blue Clay Designee acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any the Blue Clay Group and the Blue Clay Affiliates or Associates thereof shall not seek to do indirectly through any of the Nominees or their Replacements Blue Clay Designee anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder the Blue Clay Group or any Affiliate or Associate thereofthe Blue Clay Affiliates).
(d) For purposes of this Agreement:
Appears in 2 contracts
Sources: Appointment and Nomination Agreement (Blue Clay Capital Management, LLC), Appointment and Nomination Agreement (Famous Daves of America Inc)
Standstill. (a) Each 8.1 Without prejudice to any obligations the Recipient may have at law, under the other provisions of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither under the Code or otherwise, the Recipient undertakes that it nor any of its Affiliates or Associates willshall not, and it will cause each shall procure that no member of its Affiliates the Recipient's Group (and Associates not to, directly or indirectly in any manner, alone or no person acting in concert with others:
(iit or them) make, engage in, or in any way participate inwill, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise either alone or in conjunction with any way participate in any “group” (as such term is defined in Section 13(d)(3) third party, for a period of 12 months from the Exchange Act for purposes date of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;:
(iiia) acquire, offer or propose to acquire, procure or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate induce any other person to effect or seek, offer or propose to effect or participate inacquire, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase interest in the securities of the Company if (as defined and interpreted in accordance with the Code) or enter into any agreement or arrangement (whether legally binding or not) or do any act as a result of which the Recipient or any other member of the Company’s current or previous management, any director or former director, Recipient's Group (or any of their Affiliates or Associates has publicly offered to person acting in concert with it) may acquire all or substantially all of an interest in the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActCompany;
(vb) engage in make, or procure or induce any short sale other person to make, any offer for all or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that as defined and interpreted in accordance with the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell Code) or otherwise dispose enter into any agreement or arrangement (whether legally binding or not) or do any act as a result of which the Recipient or unwind call option, swap or hedging positions they may have as any other member of the date hereof relating Recipient's Group (or any person acting in concert with it) may become obliged (whether under the Code or otherwise) to make an offer for all or any of the securities of the Company); or
(c) announce, or procure or induce any other person to announce, any offer for all or any of the securities of the Company (as defined and interpreted in accordance with the Code) or enter into any agreement or arrangement (whether legally binding or not) or do any act as a result of which the Recipient or any other member of the Recipient's Group (or any person acting in concert with it) may become obliged (whether under the Code or otherwise) to announce an offer for all or any of the securities of the Company.
8.2 The restrictions in clause 8.1 shall not apply or cease to apply (as the case may be) if:
(a) the Company has provided its prior written consent to the actions taken;
(vib) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders Recipient's Group or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 person acting in concert with any member of the California Corporations Code Recipient's Group makes or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management announces an offer under Rule 2.7 of the Company, including any plans or proposals Code to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have acquire the Company waive or make amendments or modifications to that is recommended by the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control directors of the Company by any person, (E) causing a class at the time of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingsuch announcement; or
(xc) publicly request, directly or indirectly, a third party which is not acting in concert with any amendment or waiver member of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any Recipient's Group makes or announces an offer under Rule 2.7 of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Code to acquire the Company (whether such offer is recommended or their directors, officers, partners, employees, members or agents not); or
(d) the Company announces that it has been approached by a third party (not acting in such capacity) from communicating privately concert with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees Recipient's Group) in relation to cause all shares of Common Stock beneficially owned by it as of the record date a possible offer for the 2014 Annual Meeting to be present for quorum purposes Company and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor board of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (is in discussions with such third party.
8.3 In clause 8, offer means any general, partial, tender or other type of offer including, without limitation, voting on any matter submitted for consideration by the Boardtakeover or merger transaction (however effected), participating in deliberations reverse takeover, scheme of arrangement or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done other court scheme, offer by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder parent company for shares in its subsidiary, share exchange or any Affiliate or Associate thereof)similar transaction.
Appears in 2 contracts
Sources: Confidentiality Agreement, Confidentiality Agreement
Standstill. (a) Each The Purchaser agrees that until the two-year anniversary of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 Closing Date (the “Covered PeriodStandstill Termination”), except without the prior written approval of the Board, the Purchaser will not, directly or indirectly, and will cause its Affiliates not to, make any short sale of, or enter into any hedging or similar transaction with the same economic effect as expressly set forth a short sale of, any Shares, or otherwise establish or increase, directly or indirectly, a put equivalent position, as defined in this AgreementRule 16a-1(h) under the Exchange Act, neither it nor with respect to any of the Shares (it being agreed that any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in (or with respect to) securities of other industry participants shall not be restricted).
(b) Except as may be provided by the prior written approval of the Board, the Purchaser agrees that until the Standstill Termination the Purchaser will not, and will cause its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) makeacquire, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, offer or seek to adviseacquire, encourage agree to acquire or influence make a public proposal to acquire, by purchase or otherwise, any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “equity securities of the Company”) , any securities convertible into or exchangeable for the election of individuals any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the Board price of Shares (it being agreed that any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in (or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to) securities of other industry participants shall not be restricted); provided, that following the Closing, subject 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 Section 7.2 of the nominees Company’s Articles of Restatement, as amended, the Purchaser and its Affiliates may acquire additional Shares so long as the Purchaser and its Affiliates beneficially own, in the aggregate, no more than 9.8% of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Company’s then-outstanding Shares;
(ii) form, join, encourage, influence, advise make or in any way participate in any “groupsolicitation” of “proxies” (whether or not relating to the election or removal of directors), as such term is defined terms are used in Section 13(d)(3) the rules of the Exchange Act for purposes of this AgreementSEC, to vote, or knowingly seek to advise or influence any such group, a “Section 13(d) Group”) with any persons (other than, Person with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholdersvoting of, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any voting securities of the Company or otherwise in any manner agree, attempt, call or seek or propose to deposit any securities call a meeting of the Company in Company’s stockholders or initiate any voting trust stockholder proposal or similar arrangementaction by the Company’s stockholders, or subject seek election to or to place a representative on the Board or seek the removal of any securities of director from the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this AgreementBoard;
(iii) acquiremake any public announcement with respect to, offer or propose to acquire, any merger or agree to acquire, directly or indirectly, whether by purchasebusiness combination, tender or exchange offer, through recapitalization, reorganization or purchase of a material portion of the acquisition of control of another personassets, by joining a partnership, limited partnership, syndicate properties or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such timeits Subsidiaries, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries Subsidiaries, or joint ventures enter into any arrangements, understandings or agreements with any other Person regarding any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) 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 foregoing (other than a broad-based market basket or index) that includes, relates as permitted pursuant to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the CompanySection 5.06);
(viiv) (A) call or seek to callotherwise act, alone or in concert with others, to seek to control or influence, in any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate tomanner, the Boardmanagement, Board or policies of the Company or any of its Subsidiaries;
(v) except as set forth herein, (C) seek publicly make any proposal to the removal of Company or its management or Board with respect to, or issue any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of press releases or make any proposal or request that constitutesstatements which could reasonably be expected to become public with respect to: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change in the number or term of directors or to fill the filling of any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking any waiver, amendment or modification to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or BylawsCharter Documents, or other actions that which may impede or facilitate the acquisition of control of the Company by any personperson in any way whatsoever, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiivi) make any request for stock list materials or other books and records of the Company under Maryland law;
(vii) make any public disclosure, announcement proposal or statement regarding of inquiry or publicly disclose any intent, purposeintention, plan or proposal arrangement consistent with respect the foregoing;
(viii) advise, assist, knowingly encourage or direct any Person to the Boarddo, the Companyor to advise, its managementassist, policies encourage or affairsdirect any other Person to do, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreementforegoing;
(ix) take any action that would, in effect, require the Company to make a public announcement with respect to any of the foregoing;
(x) enter into any discussions, negotiations, agreements arrangements or understandings with any Third Party third party (including, without limitation, security holders of the Company) with respect to any of the foregoing, including, without limitation, forming, joining or advise, assist, knowingly encourage or seek to persuade in any Third Party to take way participating in a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) with any action or make any statement third party with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xxi) publicly requestrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.02, provided that this clause shall not prohibit the Purchaser from making a confidential request to the Company seeking an amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall 5.02, 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 be deemed require public disclosure thereof by the Company and, provided further, that notwithstanding anything to prohibit the contrary in this Section 5.02, the Purchaser and its Affiliates may at any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating time communicate privately with the Company’s directors, officers or advisors or submit to the Board one or more confidential proposals or offers for a transaction (including a transaction that, if consummated, would result in a change of control of the Company), so long as as, in each case, such communications and submissions are not intended to, and would not reasonably be expected to, require any public disclosure by the Company of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associatescommunications or submissions, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardapplicable.
(c) Nothing in The obligations under this Section 2 5.02 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as automatically terminate upon a director Change of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Control Date.
Appears in 2 contracts
Sources: Investment Agreement (Amherst Single Family Residential Partners VI, LP), Investment Agreement (Front Yard Residential Corp)
Standstill. (a) Each member of the PW Group Shareholders solely on behalf agrees that during the Covered Period, unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates, each a majority of the Luxor Shareholders solely on behalf of itself Company’s directors not including the PW Designee, it shall not, and its respective Affiliates and Associates and shall cause each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “PW Affiliates,” provided that no portfolio company of the PW Group shall be deemed a “PW Affiliate” so long as such portfolio company (i) has not received from the PW Group or the PW Designee information concerning the Company or its business, and it will cause each (ii) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the PW Group or the PW Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to who are not PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Group (together with their Affiliates and Associates and the PW Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.012.9% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe PW Group and the PW Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial or other ownership interest of such persons, collectively with their the PW Group and the PW Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such 12.9% limitation;
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the PW Group or any PW Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, (D) a PW Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9% in the aggregate of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Group or an a PW Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Group or an a PW Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any member of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Group or a PW Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates management has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(vvi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vivii) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 302A.461 of the California Corporations Code MBCA or otherwise;
(viiviii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) [Intentionally omitted]
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xxii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Group or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees shall make commercially reasonable efforts to cause all shares of Common Stock beneficially owned owned, directly or indirectly, by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 2013 Annual Meeting, and further agrees that at the 2014 2013 Annual Meeting it shall (i) make commercially reasonable efforts to vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period Period, each member of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall make commercially reasonable efforts to cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements PW Designee acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no the PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Group and the PW Affiliates or Associates thereof shall not seek to do indirectly through any of the Nominees or their Replacements PW Designee anything that would be prohibited if done by a the PW Group/Luxor/▇▇▇▇▇▇ Shareholder Group or any Affiliate or Associate thereofthe PW Affiliates).
(d) For purposes of this Agreement:
Appears in 2 contracts
Sources: Nomination Agreement (PW Partners Atlas Fund LP), Nomination Agreement (Famous Daves of America Inc)
Standstill. During the Restricted Period, the Global Value Signatories will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, in each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)case, except as expressly set forth in permitted by this Agreement):
(a) with respect to Company or the Voting Securities, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, participate in or in any way participate in, directly or indirectly, encourage any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard (as defined below), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of proxies or consents with respect to the exclusion set forth election or removal of directors in Rule 14a-1(l)(2)(ivany manner or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Exchange ActSEC) in any such solicitation of proxies or consents to vote, or consents; (iii) seek to advise, encourage or influence any person Person, or assist any Person in so encouraging, advising or influencing any Person, with respect to the voting giving or withholding of any securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company Board’s recommendation in connection with such matter, if applicable); or any securities convertible (iv) initiate, encourage or exchangeable into participate, directly or exercisable for any such securities (collectivelyindirectly, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitationvote no,” for the election of directors with respect to the Company “withhold” or similar campaign;
(b) initiate, propose or otherwise “solicit” (as such terms are defined or term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of Company’s stockholders for the nominees of the Board at any shareholder meeting) or make or be the proponent approval of any shareholder proposal (proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act Act, or otherwise), or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with respect to Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of “proxy access”; or (iii) conduct any nonbinding referendum or hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to nominate or propose the nomination of or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or encourage any Person to seek, the removal of any member of the Board;
(e) (i) call or seek to call a special meeting of Company’s stockholders, or encourage any Person to call a special meeting of Company’s stockholders; (ii) act or seek to act by written consent of stockholders; or (iii) make a request for any stockholder list or other records of Company;
(f) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, joinjoin (whether or not in writing), encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (group, including any a “group” as defined pursuant to Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (Biii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the extent none of the PW Group Shareholders, the Luxor Shareholders Board);
(g) (i) make any offer or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group proposal (with any of the others, would result in (1or without conditions) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or offer, exchange offer, merger, amalgamation, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganizationconsolidation, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other similar extraordinary transaction involving the Company or Company, any of its subsidiaries or joint ventures or any of their respective securities or assets (each, an “Extraordinary Transaction”)) and any Restricted Person; (ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or make any public statement proposal (with respect to an Extraordinary Transaction; provided, however, that this clause shall not (Aor without conditions) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (Biv) prohibit prior to Company announcing an Extraordinary Transaction, publicly or privately comment to any PW Group/Luxor/▇▇▇▇▇▇ Shareholders Third Party on any proposal regarding any Extraordinary Transaction (it being understood that this clause (g) will not restrict any Restricted Person from tendering shares, receiving payment for shares or Affiliate otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if join, as a member of the Company’s current or previous managementparty, any director litigation, arbitration or former directorother proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or Associates has publicly offered (v) responding to acquire all or substantially all complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the equity number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of the Company in to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (vi) causing a “take private” transaction subject class of securities of Company to Rule 13e-3 promulgated under become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vj) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, right or other similar right (including, without limitation, including any put or call option or “swap” swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Company;
(it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell l) enter into any stock borrowing, stock pledging or otherwise dispose of stock lending arrangement or unwind call option, swap or hedging positions they may have as of the date hereof relating agreement with respect to securities of the Company);
(vim) (A) call or seek other than through non-public communications with Company that would not reasonably be expected to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request trigger public disclosure obligations for any shareholder list Party, make or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take disclose any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, Company or its management, policies policies, affairs or affairsassets, any of its securities or assets the Voting Securities or this Agreement Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ixn) enter into any discussionseconomic relationship with any Person in respect of Company, or compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company (other than pursuant to ordinary course compensation arrangements related to the Global Value Director’s service as an employee of any member of the Global Value Group) with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that, notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on the Global Value Signatories and the other Restricted Persons contemplated by this clause (n) will be operative so long as the Global Value Director is serving on the Board);
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with any Third Party with respect to any of the foregoingwith, or advise, assistfinance, knowingly encourage assist or seek to persuade encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or make propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any statement Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Global Value Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 29.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the Global Value Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities), it being understood that the following will not be deemed to violate this clause (p): (i) the receipt by the Global Value Director from Company of any ordinary course compensation received as a director of Company in the form of Voting Securities (or securities exercisable for Voting Securities); and (B) the pro rata acquisition of securities of Company or any rights decoupled from the underlying securities of Company pursuant to any stock splits, stock dividends, reclassifications, recapitalizations, combinations or rights issuances (including the pro rata acquisition of securities upon the exercise of such rights) in respect of securities of Company beneficially owned by the Global Value Group in compliance with this Agreement (it being understood that, notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on the Global Value Signatories and the other Restricted Persons contemplated by this clause (p) will be operative for a minimum of five years); or
(q) other than through open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, any securities of Company to any Third Party that, to the knowledge of any member of the Global Value Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any of publicly available information, including information in documents filed with the foregoingSEC), or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting would result in such capacity) from communicating privately Third Party, together with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the Luxor Shareholders solely on behalf then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of itself any Third Party who, together with its Affiliates and its respective Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities; provided, that, for purposes of this clause (q), the term “Third Party” shall not include any limited partner of GVP 2021 A, L.P. (the “Fund”) that (i) receives a distribution in kind of Company’s common shares from the Fund and (ii) holds such shares in an account that no member of the Global Value Group has discretionary investment authority over; provided, further, that this clause (q) shall not prohibit the Global Value Signatories from selling or otherwise transferring securities of Company to their Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it so long as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any such Affiliates or Associates thereof shall seek sign a joinder in form and substance reasonably satisfactory to do indirectly through any of the Nominees or their Replacements anything that would Company pursuant to which they agree to be prohibited bound by this Agreement as if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)signatory hereto.
Appears in 2 contracts
Sources: Board Matters Agreement (Global Value Investment Corp.), Agreement (Rocky Mountain Chocolate Factory, Inc.)
Standstill. (a) Each So long as the Company has not breached this Agreement, each member of the PW Knightspoint Group Shareholders solely severally, and not jointly, agrees that during the period commencing on behalf the date hereof and ending on the Termination Date, without the prior written consent of itself the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, he, she or it will not, and its respective Affiliates and Associates, will cause each of his, her or its officers, agents and other Persons, including any Affiliates or Associates identified in the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Schedule 13D, but excluding the ▇“Other Reporting Persons” (except for ▇▇▇▇▇ Shareholders solely ▇. ▇▇▇▇) as defined in the Schedule 13D, acting on his, her or its behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage inengage, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of proxies (as such terms are used term is defined in the proxy rules of Rule 14a-1(l) promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) of proxies or consents (whether or not relating to votethe election or removal of directors), or seek to advise, encourage or influence any person Person (as defined in Section 11 hereof) with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors Voting Securities with respect to the Company 2006 Annual Meeting in a manner that is inconsistent with the terms of this Agreement; or otherwise “solicit” (as such terms are term is defined or used in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all stockholders of the nominees Company for the approval of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 or exempt solicitations pursuant to Rule 14a-2(b)(1) Rule 14a-2(b)(2) under the Exchange Act or otherwise)otherwise induce or encourage any other Person to initiate any such stockholder proposal;
(ii) form, join, encourage, influence, advise join or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(dAct) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholdersany Voting Securities, other than a Section 13(d) Group “group” that includes all or some lesser number of the persons Persons identified on as “Reporting Persons” in the Group 13D as of the date hereof and their Affiliates and AssociatesSchedule 13D, but does not including include any other entities or persons members who are not currently identified on as Reporting Persons;
(iii) other than as previously disclosed in the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agreeSchedule 13D, attempt, seek or propose to deposit any securities of the Company Voting Securities in any voting trust or similar arrangement, or subject any securities of the Company Voting Securities to any arrangement or agreement with respect to the voting thereofof any Voting Securities, except as expressly set forth in this Agreement;
(iiiiv) acquireenter into any arrangements, offer understanding or propose to acquireagreements (whether written or oral) with, or agree to acquireadvise, directly finance, assist or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwiseencourage, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent other Person in connection with any of the PW Group Shareholdersforegoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the Luxor Shareholders foregoing;
(v) discuss or communicate any confidential information with respect to the Company and its business, including but not limited to information related to the evaluation of any strategic alternatives under consideration by the Board, with ▇▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders ; or
(together with their Affiliates and Associates and vi) take or cause or induce others to take any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group action inconsistent with any of the others, would result foregoing. It is understood and agreed that the foregoing shall not be deemed to prohibit (y) any of the members of the Knightspoint Group who are directors of the Company from engaging in any lawful acts that they deem appropriate in the exercise of their fiduciary duties as directors of the Company or (1z) any members of the Knightspoint Group from making any public statements regarding the Company in response to any public communication or announcement with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipCompany, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable in connection with any person)public proposal, offer stockholder vote or propose with respect to effectany publicly proposed strategic alternatives related to the Company, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make but not including any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of stockholder vote at the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 2006 Annual Meeting to be present for quorum purposes and to be voted, at regarding the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board2006 Nominees.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 2 contracts
Sources: Settlement Agreement (Ashworth Inc), Settlement Agreement (Knightspoint Partners II, L.P.)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each members of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Shareholder Group agrees that, during the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither he or it nor any of its Affiliates or Associates willwill not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its Affiliates behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(ia) submit, or otherwise induce or encourage any other person to 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 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, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/including ▇▇▇▇▇▇▇ Shareholders, a Section 13(dand the Additional Director) Group that includes all or some at the 2015 Annual Meeting of the persons identified on the Group 13D as Shareholders and each subsequent annual meeting of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) shareholders with respect to any securities of which the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the Board has nominated ▇▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of and the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationAdditional Director;
(ivd) seek, in any capacity other than as a member of the Board, to call, or to request the call of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(e) effect or seek to effect effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses, of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any of their respective securities (each, an “Extraordinary Transaction”), other governmental agency or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect disclosure to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a journalist, member of the Company’s current media or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4analyst) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Boardobtain any waiver, the Companyor consent under, its management, policies or affairsany amendment of, any of its securities or assets the provisions of Section 4(f) or this Agreement Section 5, or otherwise seek (in any manner that is inconsistent with would require public disclosure by any of the provisions members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or any amendment of, any provision of this Agreement;
(ixg) enter into any discussionsarrangements, negotiations, understandings or agreements (whether written or understandings with any Third Party with respect to any of the foregoingoral) with, or advise, assistfinance, knowingly encourage assist or seek to persuade encourage, any Third Party to take any action or make any statement with respect to any of the foregoingother person that engages, or otherwise take offers or cause any action or make any statement inconsistent with proposes to engage, in any of the foregoing; or
(xh) publicly request, directly take or indirectly, cause or induce others to take any amendment or waiver action inconsistent with any of the foregoing. The foregoing provisions of It is understood and agreed that this Section 2(a) Agreement shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or engaging in any way limit any actions that may be taken by the Nominees or their Replacements acting solely lawful act in his capacity as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Company.
Appears in 2 contracts
Sources: Standstill Agreement (Air T Inc), Standstill Agreement (Insignia Systems Inc/Mn)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each members of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates Air T Group agrees that, during the Air T Standstill Period, and each of the ▇▇▇▇▇▇ Shareholders solely members of the Biglari Group agrees that, during the Biglari Standstill Period, 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 of itself not to, and will use commercially reasonable efforts to cause his or its respective Associates not to:
(a) submit, or otherwise induce or encourage any other person to 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 (i) with respect to the members of the Air T Group, solely with other members of the Air T Group and/or one or more Affiliates of a member of the Air T Group, (ii) with respect to the members of the Biglari Group, solely with other members of the Biglari Group and/or one or more Affiliates of a member of the Biglari Group or (iii) to the extent such a group may be deemed to result between the members of the Air T Group and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates or Associates will, between the members of the Biglari Group and it will cause each the Company or any of its Affiliates and Associates not toAffiliates, directly or indirectly in any mannereach case, alone or in concert with others:as a result of this Agreement;
(ic) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) formincluding Swenson, joinBerning, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/Biglari and ▇▇▇▇▇▇ ▇) at the 2016 Annual Meeting of Shareholders;
(d) seek, in any capacity other than as a member of the acting majority of the Board, to call, or to request the call of, a Section 13(d) Group that includes all or some special meeting of the persons identified on the Group 13D as shareholders of the date hereof and their Affiliates and AssociatesCompany, but not including or seek to make, or make, a shareholder proposal at any other entities or persons not identified on the Group 13D as meeting of the date hereof) with respect to any securities shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this AgreementCompany;
(iiie) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining in any capacity other than as a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities member of the Company or any rights decoupled from the underlying securities acting majority of the Company that (A) to the extent any of the PW Group ShareholdersBoard, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any of their respective securities (each, an “Extraordinary Transaction”), other governmental agency or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect disclosure to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a journalist, member of the Company’s current media or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4analyst) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Boardobtain any waiver, the Companyor consent under, its management, policies or affairsany amendment of, any of its securities or assets the provisions of Section 4(c) or this Agreement Section 5, or otherwise seek (in any manner that is inconsistent with would require public disclosure by any of the provisions members of the Air T Group or the Biglari Group, as the case may be, or their respective Affiliates or Associates) to obtain any waiver, consent under, or any amendment of, any provision of this Agreement;
(ixg) enter into any discussionsarrangements, negotiations, understandings or agreements (whether written or understandings with any Third Party with respect to any of the foregoingoral) with, or advise, assistfinance, knowingly encourage assist or seek to persuade encourage, any Third Party to take any action or make any statement with respect to any other person for the purpose of the foregoingengaging, or otherwise take offering or cause any action or make any statement inconsistent with proposing to engage, in any of the foregoing; or
(xh) publicly request, directly take or indirectly, cause or induce others to take any amendment or waiver action inconsistent with any of the foregoing. The foregoing provisions of It is understood and agreed that this Section 2(a) Agreement shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it from engaging in any lawful act in his capacity as a director of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedCompany, at the 2014 Annual Meetingexcept that none of ▇▇▇▇▇▇▇, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (Biglari or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedmay act as a director to call, directly or indirectlyto request the call of, by it as a special meeting of the applicable record date to be present for quorum purposes and to be voted in favor shareholders of the election to the Board Company unless such special meeting is being called by a majority of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 2 contracts
Sources: Standstill Agreement (Biglari Capital Corp.), Standstill Agreement (Air T Inc)
Standstill. (a) Each of From and after the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)Closing, except as expressly set forth provided in this AgreementSection 4.3, neither it nor any of its Affiliates or Associates willunless otherwise approved, or an exemption or waiver is otherwise approved, by the Unaffiliated Directors, each A/N Party and each Liberty Party shall not, and it will shall use reasonable best efforts to cause each of its Affiliates and Associates Representatives not to, directly or indirectly in any manner, alone or in concert with othersindirectly:
(ia) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the defined under Regulation 14A under Exchange Act) or consents relating to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 Company, become a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of under Regulation 14A under the Exchange Act for purposes Act) in any solicitation seeking to elect directors not nominated by the Board of this AgreementDirectors, or agree or announce an intention to vote with any such group, Person undertaking a “Section 13(d) Groupsolicitation”) , or seek to advise or influence any Person or 13D Group with respect to the voting of any persons (other thanVoting Securities, in each case, with respect thereto, other than (subject to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof4.4) with respect to any securities the election of the Company or otherwise in any manner agree, attempt, seek or propose to Investor Designees;
(b) deposit any securities of the Company Voting Securities in any voting trust or similar arrangementarrangement that would prevent or materially interfere with the Investor Party’s right or ability to satisfy its obligations under this Agreement;
(c) propose any matter for submission to a vote of stockholders of the Company or call or seek to call a meeting of the stockholders of the Company;
(d) other than the A/N Proxy, or subject grant any securities proxies with respect to any Voting Securities of the Company to any arrangement or agreement with respect Person (other than to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities designated representative of the Company or any rights decoupled from the underlying securities of the Company that (A) pursuant to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public proxy statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vie) form, join, encourage the formation of or engage in discussions relating to the formation of, or participate in a 13D Group with respect to Voting Securities of the Company;
(Af) call or seek to calltake any action, alone or in concert with others, or make any meeting public statement not approved by the Board of shareholdersDirectors, including by written actionin each case, (B) to seek representation onto control or influence the management, Board of Directors or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member policies of the BoardCompany or any of its Subsidiaries other than, (D) solicit consents from shareholders or otherwise act or seek to act by written actionin each case, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books through participation on the Board and records, whether the applicable committees pursuant to Section 1600 Sections 3.2 and 3.4 of the California Corporations Code or otherwisethis Agreement, respectively;
(viig) take any action in support of offer or make any proposal propose to acquire or agree to acquire (or request that constitutes: (A) advisingpermission to do so), controllingwhether by joining or participating in a 13D Group or otherwise, changing or influencing the Board or management Beneficial Ownership of Voting Securities in excess of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the BoardCap, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to accordance with Section 12(g)(4) of the Exchange Act4.1;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixh) enter into any discussions, negotiations, agreements arrangements or understandings with, or advise, assist or encourage any Person with respect to any Third Party of the actions prohibited by Section 4.1 or this Section 4.2;
(i) publicly seek or publicly request permission to do any of the foregoing, publicly request to amend or waive any provision of this Section 4.2 (including this clause (i)), or publicly make or seek permission to make any public announcement with respect to any of the foregoing;
(j) enter into any agreement, arrangement or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement understanding with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xk) publicly requestcontest the validity or enforceability of the agreements contained in Section 4.1 or this Section 4.2 or seek a release of the restrictions contained in Section 4.1 or this Section 4.2 (whether by legal action or otherwise), directly other than in accordance with this Agreement; provided, however, that nothing contained in this Section 4.2 shall limit, restrict or indirectlyprohibit any non-public discussions with or communications or proposals to management or the Board by the Investor Party, its controlled Affiliates or Representatives relating to any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 2 contracts
Sources: Stockholders Agreement (CCH I, LLC), Stockholders Agreement (Charter Communications, Inc. /Mo/)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each Member of the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders solely on behalf Group agrees that, during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates hereby severally and a majority of the Company’s directors not jointly agrees that from including the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”▇▇▇▇▇▇▇▇▇▇▇ Designees), it shall not, and shall cause each ▇▇▇▇▇▇▇▇▇▇▇ Affiliate not to (except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to), directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange ActSEC) or consents to vote, or seek to advise, encourage or influence (including, for the avoidance of doubt, by encouraging or participating in any “withhold” or similar campaign) any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for with respect to the election or removal of individuals to the Board directors or to approve shareholder proposals, 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 at any shareholder meeting) or make or make, be the proponent of or cause any person to initiate any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/person who is not identified on Schedule A as a Member of the ▇▇▇▇▇▇▇▇▇▇▇ ShareholdersGroup or a ▇▇▇▇▇▇▇▇▇▇▇ Affiliate (any such person, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof“Third Party”) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/the ▇▇▇▇▇▇▇▇▇▇▇ Shareholders Group or an a ▇▇▇▇▇▇▇▇▇▇▇ Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated approved by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActBoard;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(viiv) (A) call, seek to call or seek to call, alone or in concert with others, request the call of any meeting of shareholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as specifically set forth hereinin Section 1, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders shareholders, or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code BCL or otherwise;
(viiv) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors directors, the removal of any directors, or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles Certificate of Incorporation or BylawsBy-Laws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiivi) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixvii) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xviii) publicly requestmake or in any way advance any request or proposal to amend, directly modify or indirectly, waive any amendment or waiver of the foregoing. The foregoing provisions provision of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting Agreement other than in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, a nonpublic and confidential manner and which nonpublic and confidential request would not reasonably be expected to, by the Company to require any public disclosure of such communicationsby any party hereto.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any ▇▇▇▇▇▇▇▇▇▇▇ Designee, during the term of any service as a director of the Company, from taking actions that may be taken by the Nominees or their Replacements acting solely in such ▇▇▇▇▇▇▇▇▇▇▇ Designee’s capacity as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of ; provided, that the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇▇▇▇▇▇ Shareholder or Designee taking any Affiliates or Associates thereof shall seek to do indirectly through any such actions does not have an actual conflict of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/interest) and complying with applicable fiduciary duties so long as such actions are consistent with such ▇▇▇▇▇▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Designee’s obligations and representations under the other Sections of this Agreement.
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Coppersmith Capital Management, LLC), Nomination and Standstill Agreement (Conmed Corp)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Global agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, acting alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” (as defined in Rule 14a-l of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to voteinduce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of the Common Stock (including any securities withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of stockholders) or grant a proxy with respect to the voting of the Company Common Stock or other voting securities to any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals person other than to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for persons appointed as proxies by 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(ii) form, join, encourage, influence, advise join or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(dAct) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, the Common Stock (other than a Section 13(d) Group “group” that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and AssociatesExhibit A, but does not including include any other entities or persons not identified on the Group 13D Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of ▇▇▇▇▇▇▇ Global to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iii) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company Common Stock in any voting trust or similar arrangement, or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of ▇▇▇▇▇▇▇ Global and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with others, representation on the Board, except as expressly set forth specifically contemplated in this Agreement;
(iiivii) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders (other than such encouragement, support or influence that is consistent with Company’s management or the Board’s recommendation in connection with such matter);
(x) other than through action at the Board by the New Director acting in his capacity as a director of the Company, seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(xi) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (any of the transactions or events described in this subsection (x), a “Transaction”);
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, beneficial ownership of any securities Common Stock of the Company or any rights decoupled from representing in the underlying securities of the Company that aggregate (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the among ▇▇▇▇▇▇▇ Shareholders remain members Global and its Affiliates and Associates) in excess of a Section 13(d) Group with any 15% of the othersCompany’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, would result in stock dividend, stock repurchase or similar corporate action initiated by the PW Group/Luxor/Company with respect to any Common Stock beneficially owned by ▇▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of Global on the date hereof relating to securities of the Companythis Agreement);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiixiii) make any public disclosure, announcement request or statement regarding submit any intent, purpose, plan or proposal with respect to amend the Board, the Company, its management, policies or affairs, any terms of its securities or assets or this Agreement that is inconsistent other than through non-public communications with the provisions of this Agreement;Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(ixxiv) enter into any discussionsagreement, negotiations, agreements arrangement or understandings understanding with any Third Party with respect to a third party concerning any of the foregoing, foregoing (other than this Agreement) or advise, assist, knowingly encourage or seek solicit any person to persuade any Third Party to take any action or make any statement with respect to undertake any of the foregoingforegoing activities; provided, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly requestthat, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of notwithstanding anything in this Section 2(a) 3(a), it is understood and agreed that this Agreement shall not be deemed to prohibit any of (x) the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) New Director from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or engaging in any way limit any actions that may be taken by the Nominees or their Replacements acting solely lawful act in his capacity as a director of the Company (including, without limitation, voting on any matter submitted for consideration that is either expressly approved by the Board, participating Board or required in deliberations or discussions of the Board and making suggestions or raising issues order to the Board) consistent comply with his fiduciary duties as a director of the Company or (it being understood y) solely with respect to any Transaction that has been approved by a majority of the Board and agreed that no PW Group/Luxor/has been announced by the Company, ▇▇▇▇▇▇▇ Shareholder Global from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any Affiliates shares or Associates thereof proxies consistent with the Board’s recommendation in connection with such matter.
(b) As used in this Agreement:
(i) the terms “Affiliate” and “Associate” shall seek to do indirectly through have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include (A) any person that is a publicly held corporation or organization and is an Affiliate or Associate solely by reason of the Nominees fact that a principal or their Replacements anything that would be prohibited if done by a PW Group/Luxor/representative of ▇▇▇▇▇▇▇ Shareholder Global serves as a member of the board of directors or similar governing body of such corporation or organization, (B) any principal or representative of ▇▇▇▇▇▇▇ Global solely in its capacity as a member of the board of directors or similar governing body of a publicly held corporation or organization, or (C) any corporation or organization that is an Associate of a person solely because such person, directly or indirectly, is the beneficial owner of 10% or more of any class of equity securities of such corporation or organization and is not an Affiliate or Associate thereof).of such person;
Appears in 2 contracts
Sources: Shareholder Agreement (Tenzing Global Management, LLC), Agreement (Care.com Inc)
Standstill. (a) Each of During the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCooperation Period, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the E▇▇▇▇▇▇ Shareholders solely on behalf of itself Party will not, and will cause its controlling and controlled (and under common control) Affiliates and its and their respective Affiliates and Associates hereby severally and not jointly agrees that from Representatives acting on their behalf (collectively with the date hereof until the termination of this Agreement in accordance with Section 5 (E▇▇▇▇▇▇ Parties, the “Covered PeriodRestricted Persons”) to not, directly or indirectly, without the prior written consent, invitation, or authorization of or by the Company or the Board:
(i) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, record or beneficial ownership of or economic exposure to any Voting Securities or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in the E▇▇▇▇▇▇ Parties (together with their Affiliates) having aggregate economic exposure to more than 29.9% of the Ordinary Shares outstanding at such time, or exceeding the ownership limitation relating to Section 883 of the Internal Revenue Code as set forth in Section 11 of the Bylaws;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s shareholders or act by written consent in lieu of a meeting (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in this AgreementSection 1, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(iC) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company; provided that nothing in this Agreement will prevent the E▇▇▇▇▇▇ Parties or their Affiliates from identifying any Additional Director pursuant to Rule 14a-8 under Section 1(b) or any Successor Director pursuant to Section 1(f);
(iii) make any request for any shareholder list materials or other books and records of the Exchange Company or any of its subsidiaries, whether pursuant to Section 65(2) of the Companies Act or otherwise);any other statutory or regulatory provisions providing for shareholder access to books and records;
(iiiv) form, join, encourage, influence, advise or in any way participate (A) engage in any “groupsolicitation” (as such term is used in the proxy rules promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company or (B) become a “participant” (as such term is defined in Section 13(d)(3) Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act for purposes of this Agreement, Act) in any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all solicitation of proxies or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;consents;
(iiiv) acquire, offer make or propose submit to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent its Affiliates any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such timeproposal for, or offer of (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companywithout conditions), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganizationrestructuring, liquidation, dissolution, sale or acquisition other disposition of material assets, liquidation, dissolution all or other substantially all of the Company assets or similar extraordinary transaction involving the Company or any of (including its subsidiaries or and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), ) either publicly or make any in a manner that would reasonably be expected to require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares or otherwise dispose of or unwind call optionparticipating in any Extraordinary Transaction, swap or hedging positions they may have in each case on the same basis as other shareholders of the date hereof relating to securities of the Company);Company);
(vi) make any public proposal with respect to (A) call or seek to call, alone or any change in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term identity of directors of the Company or to fill the filling of any vacancies on the Board, except Board other than as set forth hereinprovided under Section 1 of this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in to the Board or the Company’s management, business governance or corporate structure, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Memorandum of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control Association of the Company by any personor the Bylaws, as amended from time to time (collectively, the “Organizational Documents”), (E) causing a class of securities of the Company Ordinary Shares to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company Ordinary Shares to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;Act;
(vii) knowingly encourage or advise any third party or knowingly assist any third party in encouraging or advising any other person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any Voting Securities, or (B) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement);
(viii) make form, join or act in concert with any public disclosure“group”, announcement or statement regarding any intentas defined in Section 13(d)(3) of the Exchange Act, purpose, plan or proposal with respect to any Voting Securities, other than solely with Affiliates of the Board, the Company, its management, policies E▇▇▇▇▇▇ Parties with respect to Voting Securities now or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;hereafter owned by them;
(ix) enter into any discussionsa voting trust, negotiations, agreements arrangement or understandings with any Third Party agreement with respect to Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Affiliates of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/E▇▇▇▇▇▇ Shareholders Parties or their directors(C) granting proxies in solicitations approved by the Board;
(x) engage in any short sale or any purchase, officerssale, partnersor grant of any option, employeeswarrant, members convertible security, stock appreciation right, or agents other similar right (acting including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in such capacity) from communicating privately with the market price or value of the Company’s directorssecurities and would, officers in the aggregate or advisors so long as such communications are not intended toindividually, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of result in the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the E▇▇▇▇▇▇ Shareholders solely Parties ceasing to have a “net long position” in the Company;
(xi) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Ordinary Shares held by a Restricted Person to any third party;
(xii) institute, solicit or join, as a party, any litigation, arbitration, or other proceeding against or involving the Company or any of its subsidiaries or any current or former directors or officers of the Company or any of its subsidiaries (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of itself and its respective Affiliates and Associates hereby severally and not jointly agrees this Agreement, (D) exercising any statutory appraisal rights, or (E) responding to cause all shares or complying with a validly issued legal process;
(xiii) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any third party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xiv) make any request or submit any proposal to amend or waive the terms of Common Stock beneficially owned by it as this Section 2(c) (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal. The restrictions in this Section 2(c) shall terminate automatically upon the earliest of the record date for following: (A) any material breach of this Agreement by the 2014 Annual Meeting Company (including a failure by the Company to be present for quorum purposes and appoint the applicable New Directors to be voted, at the 2014 Annual Meeting, and further agrees that at Board in accordance with Section 1(b) or a failure by the 2014 Annual Meeting it shall (iCompany to issue the Press Release in accordance with Section 3) vote in favor upon five business days’ written notice by any of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the E▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election Parties to the Board of those director nominees nominated for election by Company if such breach has not been cured within such notice period, provided that the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/E▇▇▇▇▇▇ Shareholder Parties are not in material breach of this Agreement at the time such notice is given or any Affiliates or Associates thereof shall seek prior to do indirectly through any the end of the Nominees or their Replacements anything notice period; (B) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company; (y) one or more definitive agreements providing for the acquisition by the Company or its subsidiaries of one or more businesses or assets (excluding, for the avoidance of doubt, acquisitions of equipment or facilities in ordinary course business operations) having an aggregate value exceeding 25% of the market capitalization of the Company during the Cooperation Period or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more third parties at least 10% of the Ordinary Shares (including on an as-converted basis, and including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be prohibited if done counted toward this clause (z)); and (C) the commencement of any tender or exchange offer (by a PW Group/Luxor/any person or group other than the E▇▇▇▇▇▇ Shareholder Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including the restrictions in this Section 2(c)) will prohibit or restrict any of the Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a third party that is a party to such Extraordinary Transaction, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (C) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (D) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company or (E) providing its views privately to the Board or the Company’s Chief Executive Officer, Chief Financial Officer, Chief Legal Officer, or members of the investor relations team made available for communications involving broad-based groups of investors (including through participation in investor meetings and/or conferences) regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be expected to require public disclosure of such communications or requests by the Company or any Affiliate or Associate thereof)of the Restricted Persons.
Appears in 1 contract
Sources: Cooperation Agreement (Norwegian Cruise Line Holdings Ltd.)
Standstill. (a) Each member of the PW ValueAct Group Shareholders solely on behalf agrees that, during the Covered Period, (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates, each a majority of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Company’s directors not including the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”ValueAct Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (i) has not discussed the Company or its business with the ValueAct Group or the ValueAct Designee, (ii) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and it will cause each (iii) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the ValueAct Group or the ValueAct Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not ValueAct Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders ValueAct Group (together with their Affiliates and Associates and the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.012.5% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe ValueAct Group and the ValueAct Affiliates, collectively with their Affiliates and Associatescollectively, exceed exceeds the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationStock;
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the ValueAct Group or any ValueAct Affiliate to any person or entity not a party to this agreement, member of the Board, director or officer of the Company, a ValueAct Affiliate, or legal counsel to any party to this Agreement (a “Third Party”) that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 9.9% of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the ValueAct Group or an a ValueAct Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the ValueAct Group or an a ValueAct Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(vvi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company)’s securities;
(vivii) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, on the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders or (F) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(viiviii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles Certificate of Incorporation or BylawsBy-laws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its current or former officers or directors;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xxii) publicly except as contemplated by Section 2(a)(iv), request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders ValueAct Group or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the PW ValueAct Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date it, or by any ValueAct Affiliate, to be present for quorum purposes and to be voted voted, at the Company’s Annual and Special Stockholder Meetings and at any adjournments or postponements thereof, and further agrees that at the 2013 annual meeting they shall vote in favor of the election to the Board of those director nominees all directors nominated for election by the Board for election at such meeting (including the ValueAct Designee as applicable) and against the removal of any directors whose removal is not recommended by in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting; provided, however, that with respect to a proposal related to an Extraordinary Transaction, the ValueAct Group and the ValueAct Affiliates may vote their shares of Common Stock beneficially owned, directly or directly, in the discretion of the ValueAct Group or the ValueAct Affiliate, as applicable.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements ValueAct Designee acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any the ValueAct Group and the ValueAct Affiliates or Associates thereof shall not seek to do indirectly through any of the Nominees or their Replacements ValueAct Designee anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder the ValueAct Group or any Affiliate or Associate thereofthe ValueAct Affiliates).
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Motorola Solutions, Inc.)
Standstill. During the Cooperation Period or until such earlier time as the restrictions in this Section 2(c) terminate as provided herein, HoldCo will not, and will cause its principals, directors, partners (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”including general partners), except as expressly set forth in this Agreementofficers, neither it nor any of employees and agents and direct its Affiliates or Associates willother Representatives (collectively with HoldCo, and it will cause each of its Affiliates and Associates “Restricted Persons”) not to, directly or indirectly indirectly, without the prior written consent of the Board:
(i) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, beneficial ownership of equity securities of the Company (or any mannersecurities convertible or exchangeable into or exercisable for any such securities) or any assets of the Company, or rights or options to acquire any equity securities of the Company (or any securities convertible or exchangeable into or exercisable for any such securities) or any assets of the Company, in each case, that would result in HoldCo having (i) beneficial ownership of more than 9.9% or (ii) aggregate economic exposure of more than 14.9%, in each case, of the total number of outstanding shares of Company Common Stock as of the date of this Agreement;
(ii) (A) request or call for (publicly or otherwise, including, for the avoidance of doubt, public support for another person’s request or call for) a special meeting of the Company’s stockholders (or the setting of a record date therefor), (B) seek, alone or in concert with others:, election or appointment to, or representation on, the Board, (C) nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board (including, for the avoidance of doubt, by making a change to the size of the Board or proposing to fill any vacancies on the Board), (D) seek, alone or in concert with others, the removal (including through any “withhold” or similar campaign) of any member of the Board, (E) make or be the proponent of any stockholder proposal to the Company, or (F) conduct a referendum of stockholders; provided that nothing in this Agreement will prevent HoldCo from identifying and nominating a Replacement Investor Nominee pursuant to Section 1(e);
(iiii) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard excluding, for the avoidance of doubt, carve-outs relating to the exclusion set forth in Rule 14a-1(l)(2)(ivsolicitations of ten or fewer stockholders) of the Exchange Act) proxies or consents to voteconsents, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectivelysecurities, “securities with respect to the election or removal of directors of the Company”) for the election of individuals Company or any other matter or proposal relating to the Board or to approve shareholder proposals, Company 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) Instruction 3 to Item 4 of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of Schedule 14A promulgated under the Exchange Act, over more than 19.99% ) in the aggregate any such solicitation of the shares of Common Stock outstanding at such time proxies or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationconsents;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement proposal with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders waiver, amendment or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications modification to the Company’s Articles of Incorporation Certificate or the Bylaws, or other actions that which may impede or facilitate the acquisition of control of the Company by any person, (EB) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, exchange or (FC) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiv) make form, join, participate in or act in concert with any public disclosure“group” as defined in Section 13(d)(3) of the Exchange Act, announcement with respect to any securities of the Company (other than a “group” solely including other Restricted Persons with respect to any securities of the Company now or statement regarding hereafter owned by them);
(vi) encourage or advise any intent, purpose, plan other person or proposal knowingly assist any person in so encouraging or advising any person (A) with respect to the giving or withholding of any proxy, consent or other authority to vote, any voting securities of the Company or (B) in conducting any type of referendum relating to the Company (other than consistent with the Board’s recommendation in connection with such matter, if applicable);
(vii) enter into a voting trust, arrangement or agreement, or subject any securities of the CompanyCompany to any voting trust, its managementarrangement or agreement, policies in each case other than granting proxies in solicitations approved by the Board;
(viii) make or affairssubmit any proposal with respect to, or offer of (with or without conditions), or participate in any way in, either alone or in concert with others, or encourage or support any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including any of its subsidiaries or any of their respective securities or assets assets) (each, an “Extraordinary Transaction”), in each case, either publicly or this Agreement in a manner that is inconsistent with would reasonably require public disclosure by the Company or HoldCo (it being understood that the foregoing will not restrict the Restricted Persons from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction initiated by a third party on the same basis as other stockholders of the Company);
(ix) make any request for stock list materials or other books and records of the Company or any of its subsidiaries under Section 220 of the DGCL or other statutory or regulatory provisions providing for stockholder access to books and records;
(x) institute, solicit, or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or its current or former directors or officers (including derivative actions); provided, however, that, for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement instituted in accordance with and subject to Section 11, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights, or (E) responding to or complying with a validly issued legal process;
(xi) enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or finance or intentionally advise or facilitate, any third party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(ixxii) enter into make any discussions, negotiations, agreements public request or understandings with submit any Third Party proposal to amend or waive the terms of this Agreement (including this clause); or
(xiii) take any action that could reasonably be expected to cause or require the Company to make public disclosure with respect to any of the foregoing; provided, that the restrictions set forth in this Section 2(c) shall terminate automatically upon (i) ten (10) business days’ prior written notice by HoldCo following a material breach of this Agreement by the Company (including a failure to nominate the New Directors in accordance with Section 1) if such breach has not been cured within such notice period (provided that HoldCo or advise, assist, knowingly encourage the Investor Nominee is not in material breach of this Agreement at the time such notice is given or seek prior to persuade any Third Party to take any action or make any statement the end of the notice period); (ii) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the foregoingCompany Common Stock or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company or (y) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more third parties at least 20% of the Company Common Stock (including on an as-converted basis) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or otherwise take similar structure) during the Cooperation Period (provided that securities issued as consideration for (or cause in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be counted toward this clause (y)); and (iii) the commencement of any action tender or make exchange offer (by any person or group other than HoldCo) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Company Common Stock, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer); provided, that in the case of clauses (ii) and (iii), this Section 2(c) shall terminate only (1) if the Investor Designee voted against the decision of the Board with respect to the relevant transaction and (2) at such time the Investor Designee resigns from the Board and any committee of the Board on which he then sits. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 2(c)) will prohibit or restrict HoldCo from (A) making any public or private statement inconsistent or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a Third Party, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought, (C) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the foregoing; or
custody or prime brokerage agreement(s), as applicable, (xD) publicly requestnegotiating, evaluating and/or trading, directly or indirectly, in any amendment index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company or (E) providing its views privately to the Board or management regarding any matter, or privately requesting a waiver of the foregoing. The foregoing provisions any provision of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directorsAgreement, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so as long as such private communications are not intended to, and or requests would not reasonably be expected to, to require any public disclosure of such communications.
(b) Each communications or requests by the Company or any of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company Restricted Persons (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder nothing in this clause (E) or otherwise obligates the Board or management of the Company to any particular schedule or availability for communications with HoldCo or any Affiliates Restricted Person and no such communications or Associates thereof shall seek to do indirectly through any of requests will unreasonably interfere with or impair the Nominees Board’s or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder management’s functioning or any Affiliate impose unreasonable burdens on the Board or Associate thereofmanagement).
Appears in 1 contract
Sources: Cooperation Agreement (Berkshire Hills Bancorp Inc)
Standstill. The Investor Parties agree that until the earlier of (i) a Change of Control (as defined in the Certificates of Designations) and (ii) the later of (A) the first day on which no Investor Designee serves on the Board and the Investor has no rights (or have irrevocably waived their right) under Section 5.10 (except Section 5.10(g)) and (B) the two-year anniversary of the Closing Date (the later of such dates, the “Standstill Expiration Date”), without the prior written approval of the Board, the Investor Parties will not, directly or indirectly, and will cause its Affiliates not to:
(a) Each acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates Affiliates, any securities convertible into or Associates willexchangeable for any such securities, and it will cause each any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or any assets or property of the Company or any Subsidiary of the Company;
(b) make or in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or any of its Affiliates and Associates not Subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders or seek the removal of any director from the Board, in each case inconsistent with the recommendations of the Board;
(c) make any public announcement with respect to, directly or indirectly offer, seek, propose or indicate an interest in (in each case with or without conditions), any mannermerger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of substantially all of the assets, properties or securities of the Company or any Subsidiary of the Company, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(d) otherwise act, alone or in concert with others:
(i) make, engage into seek to control or influence, or in any way participate inmanner, directly the management, board of directors or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities policies of the Company or any securities convertible of its Subsidiaries;
(e) make any proposal or exchangeable statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would, in effect, require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.07;
(h) enter into any discussions, negotiations, arrangements or exercisable for understandings with any such securities third party (collectivelyincluding, “securities without limitation, security holders of the Company”) , but excluding, for the election avoidance of individuals to the Board or to approve shareholder proposalsdoubt, or become a “participant” in any contested “solicitation” for the election of directors Investor Parties) 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 any of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) formforegoing, joinincluding, encouragewithout limitation, influenceforming, advise joining or in any way participate participating in any a “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) third party with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent connection with any of the foregoing; or
(xi) publicly requestrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided, that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of 5.07, which the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Company may accept or their directorsreject in its sole discretion, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as any such communications are request is made in a manner that does not require public disclosure thereof by any Person; provided, however, that nothing in this Section 5.07 will limit (1) the Investor Parties’ ability to vote (subject to Section 5.11), Transfer or Hedge (subject to Section 5.08), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, convert (subject to Section 6 of the Certificates of Designations), privately make and submit to the Company and/or the Board any proposal that is intended to, by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to, expect to require any public disclosure by any Person), participate in rights offerings made by the Company to all holders of such communications.
(b) Each its Common Stock, receive any dividends or similar distributions with respect to any securities of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCompany held by Investor Parties, each tender shares of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each Common Stock, Preferred Stock or securities issued pursuant to Section 5.16 into any tender or exchange offer (but subject to Section 5.08), acquire any securities of the ▇▇▇▇▇▇ Shareholders solely on behalf Company pursuant to Section 5.16, effect an adjustment to the Conversion Rates pursuant to the Certificates of itself and Designations or otherwise exercise rights under its respective Affiliates and Associates hereby severally and not jointly agrees to cause all Common Stock or Preferred Stock, acquire any securities of the Company in the event that bankruptcy or insolvency proceedings are commenced by the Company, including through the (A) acquisition of shares of Common Stock beneficially owned or any other Company securities through an exchange offer or through a plan of reorganization for the Company which is confirmed by it as order of the record date United States Bankruptcy Court or (B) participation in or consummation of any transaction relating to the Company effected in connection with any proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court, (2) the Investor Parties’ or their respective Affiliates’ ability to acquire, offer or seek to acquire or make a proposal to acquire or otherwise purchase up to, (X) for each of 2019, 2020 and 2021, 2.5% in the aggregate in any such calendar year of the then outstanding Common Stock (with any unused amounts in any calendar year being carried over to succeeding calendar years) and (Y) for 2022 and thereafter, any unused amount referred to in the preceding clause (X) (for the 2014 Annual Meeting to be present for quorum purposes and to be votedavoidance of doubt, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (such acquired or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all otherwise purchased shares of Common Stock beneficially owned, directly or indirectly, by it as shall exclude shares of Common Stock issued in connection with the conversion of the applicable record date Series A Preferred Stock) provided, further, that prior to be present for quorum purposes and any purchase pursuant to be voted this clause (2), the Investor Parties shall have received a certificate from the Company’s chief financial officer certifying that the proposed purchase by the Investor Party would not result in favor an “ownership change” within the meaning of Section 382(g) of the election Code, but determined as if the threshold contained in Section 382(g)(1)(A) was “40 percentage points” (rather than “50 percentage points”), which certificate the Company will use its reasonable efforts to provide in good faith within two (2) Business Days, if true or (3) the Board of those director nominees nominated for election by the Board and against the removal ability of any directors whose removal is not recommended by Investor Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Investment Agreement (Zix Corp)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇V▇▇▇▇▇ Shareholders solely on behalf agrees that, for a period of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that three (3) years from the date hereof until Effective date, unless specifically requested by the termination of this Agreement Company in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreementwriting, neither it V▇▇▇▇▇ nor any of its Affiliates his affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the "1934 Act")) or Associates will, and it agents will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any “way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any "solicitation” " of proxies "proxies" (as such terms are used in the proxy rules of the SEC but without regard Securities and Exchange Commission) to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence vote any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(iib) form, join, encourage, influence, advise join or in any way participate in any “a "group” " (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/1▇▇▇ ▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to callact, alone or in concert with others, any meeting to seek to control or influence the management, Board of shareholders, including by written action, (B) seek representation on, Directors or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member policies of the Board, Company; (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(viic) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of which might force the Company to be delisted from, or to cease to be authorized to be quoted on, make a public announcement regarding any securities exchange, of the types of matters set forth in subsection (a) above; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixd) enter into any discussions, negotiations, agreements discussions or understandings arrangements with any Third Party third party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek . V▇▇▇▇▇ also agrees during such period not to persuade any Third Party to take any action or make any statement with respect to any of request that the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly requestCompany, directly or indirectly, amend or waive any amendment or waiver provision of the foregoingthis subsection (including this sentence). The foregoing provisions of clause (a)(i) of this Section 2(a) 16 shall not be deemed to prohibit any of the PW Group/Luxor/▇V▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each acquiring securities of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCompany for investment purposes only, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇provided that V▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as shall be prohibited from purchasing securities of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedCompany if, at the 2014 Annual Meetingimmediately following such purchase, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇V▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedwould own, directly or indirectly, by it as more than five percent (5%) of the applicable record date to be present for quorum purposes and to be voted in favor such class of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardsecurities.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Separation Agreement (Unique Casual Restaurants Inc)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly FrontFour agrees that from during the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Restricted Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, alone or in concert with others:, with respect to the Company and, if the MCC Merger is consummated, the Combined Company (each of the Company and the Combined Company, a “Standstill Party”):
(i) make, engage in, or in any way participate inknowingly encourage, assist, support or advise, directly or indirectly, any “solicitation” solicitation of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to voteconsents, or seek to advise, encourage or influence conduct any person type of nonbinding referendum with respect to the any voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalssecurities, or become a “participant” in any contested a “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in Regulation 14A under the Exchange Act) of proxies or consents (other than a including, without limitation, (A) by initiating, encouraging or participating in any “solicitationwithhold” or acting as similar campaign, or (B) any solicitation of consents that seeks to call a “participant” special meeting of stockholders), in support each case, with respect to securities of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)a Standstill Party;
(ii) form, join, encourage, influence, advise join or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(dAct) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, the shares of common stock or other securities of any Standstill Party (other than a Section 13(d) Group “group” that includes all or some of the persons Persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D signature pages hereto as of the date hereof) ); provided, however, that nothing herein shall limit the ability of an Affiliate of FrontFour to join a “group” with respect FrontFour following the date hereof, so long as any such Affiliate agrees to any securities be bound by the terms and conditions of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) except, in each case, if such acquisitions are permitted by and do not exceed the Beneficial Ownership limitations set forth in the 1940 Act as in effect on the date hereof, purchase, acquire, offer offer, seek or propose to acquire, agree to acquire, or agree announce any intention to acquire, directly or indirectly, whether by purchase, tender or exchange offeroffer or otherwise, through the acquisition of control of another person, Person or by joining a “partnership, limited partnership, syndicate or other group group” (including any within the meaning of Section 13(d13(d)(3) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from Exchange Act and the underlying securities rules of the Company that SEC promulgated thereunder) Beneficial Ownership (defined below) of (A) any outstanding series or class of any securities or indebtedness of any Standstill Party, (B) any direct or indirect rights or options to acquire any such securities or indebtedness, (C) any derivative securities or contracts or instruments referencing any such securities or indebtedness, including any derivative securities or contracts or instruments related to the extent price of common stock or indebtedness of a Standstill Party, or (D) any assets or liabilities of the PW Group Shareholdersa Standstill Party; provided, the Luxor Shareholders and the however, that nothing herein shall limit or restrict ▇▇. ▇▇▇▇▇▇ Shareholders remain members from receiving any securities that may be granted or awarded to directors of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationStandstill Party;
(iv) effect deposit any shares of common stock or other securities of a Standstill Party in any voting trust or subject any shares of common stock or other securities of a Standstill Party to any arrangement or agreement with respect to the voting of any shares of common stock or other securities of a Standstill Party, other than any such voting trust, arrangement or agreement solely among FrontFour and its Affiliates and otherwise in accordance with this Agreement;
(A) make or be the proponent of any binding or non-binding proposal (whether pursuant to Rule 14a-8 under the Exchange Act, the Standstill Party’s bylaws or otherwise) for consideration by stockholders at any annual or special meeting of stockholders of any Standstill Party or in connection with a consent solicitation, (B) make any announcement, offer or proposal (with or without conditions) or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganizationtransaction relating to a material amount of assets or securities, sale or acquisition of material assetsrestructuring, liquidation, dissolution disposition or other extraordinary business combination or similar transaction involving the Company FrontFour and a Standstill Party, whether or any not such transaction involves a change of its subsidiaries control of a Standstill Party, (C) solicit a third party to make an offer or joint ventures proposal (with or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement without conditions) with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, merger, acquisition, recapitalization, transaction relating to a material amount of assets or vote by securities, restructuring, disposition or other business combination involving any PW Group/Luxor/▇▇▇▇▇▇ Shareholders Standstill Party (or encourage, initiate or support any third party in making such an Affiliate offer or Associate thereof proposal), (D) publicly comment on any third party proposal regarding any tender or exchange offer, merger, acquisition, recapitalization, transaction relating to a material amount of any securities of the Company assets or securities, restructuring, disposition, or other business combination with respect to any Extraordinary Transaction Standstill Party, or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (AE) call or seek to callcall (by written consent or otherwise), or request the calling of, in each case alone or in concert with others, any meeting of shareholdersany Standstill Party’s stockholders, whether or not such a meeting is permitted by such Standstill Party’s bylaws, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal a special meeting of stockholders of any member of the Board, (D) solicit consents from shareholders Standstill Party or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise“town hall meeting”;
(viivi) take any action publicly (or privately in support of or a manner that would reasonably be expected to become public) make any proposal or request that constitutes: (A) advising, controlling, controlling or changing or influencing the Board board of directors or management of the Companya Standstill Party, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Boardboard of directors of any Standstill Party, except as set forth hereinin this Agreement, (B) any material change in the capitalization, stock share repurchase programs and practices or dividend policy of the Companya Standstill Party, (C) any other material change in the Companya Standstill Party’s management, business or corporate structure, except as set forth in this Agreement, or (D) seeking to have the Company a Standstill Party waive or make amendments or modifications to the Companysuch Standstill Party’s Articles bylaws, certificate of Incorporation or Bylawsincorporation, or other actions that may impede or facilitate the acquisition of control of the Company a Standstill Party by any personPerson;
(vii) subject to the restrictions set forth in Section 2(d), (E) causing other than in sale transactions on the NYSE or through a class of securities broker or dealer where the identity of the Company purchaser is not known, sell or offer or agree to be delisted fromsell, directly or to cease to be authorized to be quoted onindirectly, through swap or hedging transactions or otherwise, any securities exchangeor indebtedness of a Standstill Party (or any rights decoupled from such underlying securities or indebtedness held by FrontFour or its Affiliates or Associates) or any derivatives relating to securities or indebtedness of a Standstill Party to any third party that (A) has filed a Schedule 13D with respect to a Standstill Party, (B) has run (or publicly announced an intention to run) a proxy contest with respect to a Standstill Party in the one year prior to such time, or (FC) causing will as a result of the transaction have Beneficial Ownership of more than 5% of any outstanding series or class of stock or any securities or indebtedness of the Company a Standstill Party; provided, however, that subsection (C) shall not restrict any sale to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange ActSchedule 13G filers that are mutual funds, pension funds or index funds;
(viii) (A) seek, alone or in concert with others, election or appointment to, or representation on, or nominate or propose or recommend the nomination of any candidate to, the board of directors of a Standstill Party (except to the extent expressly permitted by this Agreement), (B) seek, alone or in concert with others, the removal of any member of the board of directors of a Standstill Party, or (C) in its capacity as a shareholder of a Standstill Party, make a request for any stockholder list or other books and records of a Standstill Party, whether pursuant to Rule 14d-5 or Rule 14a-7 of the Exchange Act, Section 220 of the DGCL (or a similar provision under applicable state law);
(ix) seek to advise, encourage, support or knowingly influence any Person with respect to the voting or disposition of any securities or indebtedness of any Standstill Party at any annual or special meeting of stockholders or in connection with any consent solicitation;
(x) disclose in a manner that would reasonably be expected to become public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Boarda Standstill Party, the Company, or its board of directors or its management, policies or affairs, any of its securities or assets or that FrontFour would be prohibited from making pursuant to this Agreement that is inconsistent with the provisions of this AgreementSection 3(a);
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party third party with respect to any of the foregoingaction FrontFour is prohibited from taking pursuant to this Section 3, or knowingly advise, assist, knowingly encourage or seek to persuade any Third Party third party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingsuch action; or
(xA) publicly request, directly take any action challenging the validity or indirectly, enforceability of any amendment or waiver of the foregoing. The provisions of this Section 3 or which would cause or require any Standstill Party to make public disclosure regarding any of the foregoing provisions of this Section 2(a3(a), or (B) publicly (or privately in a manner that would reasonably be expected to become public) make any request or publicly (or privately in a manner that would reasonably be expected to become public) submit any proposal to amend or waive the terms of this Section 3.
(b) Notwithstanding anything to the contrary contained in Section 3(a) or elsewhere in this Agreement, nothing in this Agreement shall not (i) be deemed to limit the exercise in good faith by a New Director of his fiduciary duties to a Standstill Party or its stockholders solely in his capacity as a director of such Standstill Party, (ii) prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) restrict FrontFour from communicating privately with the Company’s directorsboard of directors or any officers of a Standstill Party regarding any matter, officers or advisors so long as such communications are not intended to, and or would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and or (iii) vote prohibit or restrict FrontFour from communicating with stockholders of a Standstill Party and others in a manner that does not otherwise violate Section 3(a) in any respect. Further, for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereofavoidance of doubt, the provisions of this Section 3 shall not prevent FrontFour from voting its Subject Securities in accordance with the provisions of Section 2(a) during the Covered Period each and 2(b) of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardthis Agreement.
(c) Nothing in this Section 2 shall prohibit or in During the Restricted Period, neither FrontFour nor any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any its Affiliates or Associates thereof shall seek enter into or engage in any short sale, hedge, swap, derivative transaction or other agreement or arrangement with any third party involving or referencing any securities or indebtedness of MDLY, except to do indirectly through the extent required to close, settle, eliminate or otherwise dispose of any direct or indirect interest FrontFour may be deemed to have in MDLY’s Class A common stock by virtue of certain “short positions” that are described in further detail in the Company’s Proxy Statement filed with the SEC pursuant to Section 14(a) of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Exchange Act on May 9, 2019.
Appears in 1 contract
Standstill. (a) Each member of the PW FrontFour Group Shareholders solely on behalf agrees that, during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates, each a majority of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Company’s directors not including the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Director Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(collectively and individually, and it will cause each of its Affiliates and Associates the “FrontFour Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not FrontFour Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders FrontFour Group (together with their Affiliates and Associates and the FrontFour Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.09.9% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe FrontFour Group and the FrontFour Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationStock;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, amalgamation, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause (iv) shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the FrontFour Group or an a FrontFour Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the FrontFour Group or an a FrontFour Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation onrepresentation, on or nominate any candidate to, the Board, except as expressly set forth hereinin Section 2 hereof, (C) seek (including pursuing or encouraging any “withhold” or similar campaign) the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, or (F) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code NRS 78.105, NRS 78.257 or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (B) any material change in the capitalization, dividend policy or stock repurchase programs and program or practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, ; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Articles of Incorporation or Amended and Restated Bylaws, or other actions ; (E) any action that may impede or facilitate the acquisition of control of the Company by any person, ; (EF) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (FG) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, affairs or any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, discussions negotiations, agreements agreements, or understandings with any Third Party third party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party third party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(x) commence, encourage or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors; provided, however, that for avoidance of doubt, the foregoing shall not prevent any member of the FrontFour Group from (A) bringing litigation to enforce the provisions of this Agreement or (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against such member of the FrontFour Group; and provided, further, that the foregoing shall also not prevent the members of the FrontFour Group from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted by this clause (x);
(xi) take any action that could reasonably be expected to force the Company to make a public disclosure with respect to any of the foregoing; or
(xxii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a3(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders FrontFour Group or their its directors, officers, partners, employees, members agents or agents representatives (acting in such capacity) from communicating privately with the Company’s directors, executive officers or advisors regarding matters that would otherwise be prohibited by this Section 3(a) so long as such communications are not intended to, and would could not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the PW FrontFour Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date it, or by any FrontFour Affiliate, to be present for quorum purposes and to be voted voted, at the Company’s annual and special stockholder meetings during the Covered Period (and any actions by written consent of the stockholders in lieu of a meeting) and at any adjournments or postponements thereof, and further agrees that, at each such stockholder meeting or action by written consent of the stockholders during the Covered Period, they shall vote in favor of the election to the Board of those director nominees (i) any and all directors nominated for election by the Board for election at such meetings and against (ii) in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meetings or pursuant to such written consent; provided, however, in connection with any such meeting or action by written consent, in the event that both Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”) recommend otherwise with respect to any proposals (other than the election or removal of any directors whose removal is not recommended by directors), the BoardFrontFour Group or the FrontFour Affiliates, as applicable, shall be permitted to vote in accordance with the ISS and Glass Lewis recommendation; and provided, further, that with respect to a proposal related to an Extraordinary Transaction, the FrontFour Group and the FrontFour Affiliates may vote their shares of Common Stock beneficially owned, directly or indirectly, in the discretion of the FrontFour Group or the FrontFour Affiliate, as applicable.
(c) Nothing in this Section 2 3 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements Director Designee acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his or her fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any the FrontFour Group and the FrontFour Affiliates or Associates thereof shall not seek to do indirectly through any of the Nominees or their Replacements Director Designee anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder the FrontFour Group or any Affiliate or Associate thereofthe FrontFour Affiliates).
(d) The FrontFour Group shall give written notice to the Company within one (1) business day of the FrontFour Group ceasing to beneficially own, in the aggregate, at least 2% of the outstanding shares of Common Stock (without giving effect to any share issuances or similar Company actions that increase the number of outstanding shares of Common Stock after the date hereof).
Appears in 1 contract
Standstill. Each member of the Henry Group agrees that, during the Standstill Period, 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) Each 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board.
(b) 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 PW Group Shareholders 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 on behalf of itself and its respective Affiliates and Associates, each with other members of the Luxor Shareholders solely on behalf Henry Group or one or more Affiliates of itself and its respective Affiliates and Associates and each a member of the Henry Group ▇▇▇▇ respect to the Common Stock currently owned as set ▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination in Section 2(c) of this Agreement in accordance or to the extent such a group may be deemed to result with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates or Associates will, and it will cause each as a result of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:this Agreement;
(ic) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “"solicitation” " of proxies (as such terms are used in any "proxy" within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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 any shareholder meeting) or make or be the proponent 2006 Annual Meeting of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/Shareholders and each ▇▇▇▇▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some ▇▇▇ual meeting of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) shareholders with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing which the Board or management of the Companyhas nominated David W. Wright, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Actrespectively;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each members of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates Air T Group agrees that, during the Air T Standstill Period, and each of the ▇▇▇▇▇▇ Shareholders solely members of the Biglari Group agrees that, during the Biglari Standstill Period, 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 of itself not to, and will use commercially reasonable efforts to cause his or its respective Associates not to:
(a) submit, or otherwise induce or encourage any other person to 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 (i) with respect to the members of the Air T Group, solely with other members of the Air T Group and/or one or more Affiliates of a member of the Air T Group, (ii) with respect to the members of the Biglari Group, solely with other members of the Biglari Group and/or one or more Affiliates of a member of the Biglari Group or (iii) to the extent such a group may be deemed to result between the members of the Air T Group and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates or Associates will, between the members of the Biglari Group and it will cause each the Company or any of its Affiliates and Associates not toAffiliates, directly or indirectly in any mannereach case, alone or in concert with others:as a result of this Agreement;
(ic) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) formincluding Swenson, joinBerning, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/Biglari and ▇▇▇▇▇▇ ▇) at the 2016 Annual Meeting of Shareholders;
(d) seek, in any capacity other than as a member of the acting majority of the Board, to call, or to request the call of, a Section 13(d) Group that includes all or some special meeting of the persons identified on the Group 13D as shareholders of the date hereof and their Affiliates and AssociatesCompany, but not including or seek to make, or make, a shareholder proposal at any other entities or persons not identified on the Group 13D as meeting of the date hereof) with respect to any securities shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this AgreementCompany;
(iiie) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining in any capacity other than as a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities member of the Company or any rights decoupled from the underlying securities acting majority of the Company that (A) to the extent any of the PW Group ShareholdersBoard, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any of their respective securities (each, an “Extraordinary Transaction”), other governmental agency or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect disclosure to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a journalist, member of the Company’s current media or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4analyst) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Boardobtain any waiver, the Companyor consent under, its management, policies or affairsany amendment of, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixSection 4(c) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).this
Appears in 1 contract
Standstill. (a) Each The Holder agrees that until the earlier of (i) the date on which the Holder purchases all of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of Purchase Right Shares or (ii) the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 Expiration Time (the “Covered Standstill Period”), except as expressly set forth in this Agreementthe Holder will not, neither it nor any of and will not direct its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage inacquire, or offer, propose or agree to acquire, (A) any voting securities issued by the Corporation, (B) any rights or options to acquire, or securities convertible into or exchangeable or exercisable for, any such securities or (C) any contracts or instruments in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard related to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to voteacquisition, or seek to adviseprice, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectivelywhether beneficially, “securities of the Company”) for the election of individuals to the Board constructively or to approve shareholder proposals, synthetically through any derivative 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act trading position or otherwise);
(ii) participate in any solicitation of proxies, or seek to advise or influence the vote of any person, regarding any voting securities of the Corporation, or call or seek to call a meeting of the Corporation’s stockholders or of any unitholders of the Corporation or its subsidiaries, or initiate any proposal for action by the Corporation’s stockholders or by unitholders of the Corporation, or seek election to or to place a representative on the Corporation’s Board or seek the removal of any of the directors on the Corporation’s Board;
(iii) make any public announcement of, or engage, or offer, propose or agree to engage, in any extraordinary transaction involving the Corporation or its voting securities;
(iv) form, join, encourage, influence, advise join or in any way participate in any a “group” (as such term is defined in Section 13(d)(3) of the Securities Exchange Act for purposes of this Agreement1934, any such group, a “Section 13(d) Group”as amended) with any unaffiliated persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any voting securities of the Company Corporation or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group connection with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under actions prohibited by this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the CompanySection 6.03(a), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale advise, assist, encourage, finance or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchangeinvest in, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect except to the Board, extent solely among the Company, Corporation and its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixAffiliates) enter into any discussions, negotiations, agreements or understandings with with, any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent person in connection with any of the foregoingmatters described in this Section 6.03(a);
(vi) disclose any plan, intention or proposal to do any of the matters described in this Section 6.03(a);
(vii) seek or propose to control or influence the Corporation’s management, Board or policies;
(viii) make any communications with the Corporation that reasonably could be expected to require the Corporation to make any public announcement regarding the possibility of any of the matters described in this Section 6.03(a); or
(xix) publicly request, directly contest the validity or indirectly, any amendment or waiver of the foregoing. The foregoing provisions enforceability of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communicationsSection 6.03(a).
(b) Each Nothing in Section 6.03(a) shall be deemed to prevent or restrict:
(i) the Holder from exercising this Purchase Right to acquire Purchase Right Shares;
(ii) the Holder (or its Affiliates) from exercising any of its rights under the Loan Agreement;
(iii) the Holder or its Affiliates from acquiring any securities of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCorporation due to any stock combination, each stock dividend or other similar recapitalization of the Luxor Shareholders solely on behalf Corporation;
(iv) the Holder or any of itself its Affiliates from purchasing up to 5% of any non-voting securities, bank debt or loans issued by the Corporation or any of its Affiliates;
(v) the Holder’s Affiliates that operate businesses within the financial services industry from engaging, in the ordinary course of business, in brokerage, asset management, trust, underwriting, market making and its respective Affiliates and Associates and each other similar ordinary course financial services business activities involving securities of the ▇▇▇▇▇▇ Shareholders solely Corporation, so long as those Affiliates comply with the other provisions of this Section 6.03;
(vi) any actions of any Holder Party; provided that such Holder Party is not acting on the Holder’s behalf or instruction or encouragement in contravention of itself and any term of this Section 6.03; or
(vii) the Holder or any of its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedfrom, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor invitation of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At Corporation, making any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election proposals to the Corporation’s Board or disclosing the terms of those director nominees nominated for election such permitted proposals as required by the Board and against the removal of any directors whose removal is not recommended by the Boardlaw.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Standstill. (a) Each ▇▇▇▇ agrees that, during the Standstill Period (unless specifically requested in writing by the Company, acting through a resolution of a majority of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Company’s directors not including the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Directors), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) (collectively (with ▇▇▇▇) and it will cause each of its Affiliates and Associates individually, the “▇▇▇▇ Affiliates”), not to, directly or indirectly (including through any ▇▇▇▇ Directors), in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv14a1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to advise, encourage or influence any person other than any ▇▇▇▇ Affiliate with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder meeting) stockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);, except in all cases as expressly permitted by this Agreement;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other thanexcluding, with respect to PW Group/Luxor/▇▇for the avoidance of doubt, any group composed solely of ▇▇▇▇ Shareholders, a Section 13(d) Group that includes all and ▇▇▇▇ Affiliates or some of the persons identified on group previously disclosed in the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof▇▇▇▇ 13D) with respect to any securities Securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities Securities of the Company in any voting trust or similar arrangement, or subject any securities Securities of the Company to any arrangement or agreement with respect to the voting thereofthereof (including by granting any proxy, consent or other authority to vote), except as expressly set forth in this Agreement;Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group)group, through swap or hedging transactions or otherwise, any securities Securities of the Company or any rights decoupled from the underlying securities Securities of the Company that would result in ▇▇▇▇ (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and together with the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(dAffiliates) Group with owning, controlling or otherwise having any of the others, would result beneficial or other ownership interest in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over 14.9% or more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholderstime; provided, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the othersthat, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthat ▇▇▇▇ and the ▇▇▇▇ Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely clause (iii) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the Securities of the Company or any rights decoupled from the underlying Securities of the Company held by ▇▇▇▇ or any ▇▇▇▇ Affiliate to any person or entity not a party to this Agreement (a “Third Party”) that, to JANA’s or the ▇▇▇▇ Affiliate’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock so long as outstanding at such time or would increase the beneficial or other ownership interest of such personsany Third Party who, collectively together with their Affiliates its affiliates and Associatesassociates, do not increase thereafter (except solely as has a result of further corporate actions taken by the Company), unless and until such beneficial or other ownership interest before and after in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such subsequent increase does not exceed such limitation;time;
(ivv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, schemesale of all or substantially all assets, scheme of arrangement, plan of arrangement or other business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution liquidation or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”), or make encourage, initiate or support any public statement with respect to an Extraordinary Transaction; other third party in any such activity; provided, however, that this clause (v) shall not (A) preclude the tender (or action not to tender) by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an a ▇▇▇▇ Affiliate or an Associate thereof of any securities Securities of the Company into any tender or exchange offer, offer or vote for or against any transaction by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an a ▇▇▇▇ Affiliate or Associate thereof of any securities Securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;Transaction;
(vvi) 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, including any put or call option or “swap” transaction) transaction with respect to any security (other than a broad-broad based market basket or index)) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities Securities of the Company);
(vivii) (A) call or seek to call, alone or in concert with others, request the calling of any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, (F) present at any annual meeting or any special meeting of the Company’s stockholders, or (FG) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;otherwise;
(viiviii) except as set forth herein, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, Board; (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, Company; (C) any other material change in the Company’s management, business or corporate structure, structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles certificate of Incorporation incorporation or Bylawsthe by-laws, or other actions actions, that may impede or facilitate the acquisition of control of the Company by any person, person; (E) causing a class of securities Securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, Securities exchange; or (F) causing a class of securities Securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;Act;
(viiiix) make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or slanders the Company or Affiliates thereof or any of their respective current or former officers, directors or employees, provided that ▇▇▇▇ will, subject to the Confidentiality Agreement, be permitted to make objective statements that reflect JANA’s view, as a shareholder, with respect to factual matters concerning specific acts or determinations of the Company occurring after the date of this Agreement;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingforegoing;
(xii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceedings against or involving the Company or any of its current or former directors or officers (including derivative actions), other than an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 8; or
(xxiii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (and the documents referenced in Section 1(d) or any of the PW Group/Luxor/▇▇successor documents shall not prohibit) ▇▇▇▇ Shareholders or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with regarding or privately advocating for or against any of the matters described in this Section 2(a) with, or from privately requesting a waiver of any of the foregoing provisions of this Section 2(a) from, the Company’s directorsdirectors or officers, officers or advisors so long as such communications or requests are in accordance with the Confidentiality Agreement and are not intended to, and would not reasonably be expected to, require any public disclosure of such communicationscommunications or requests.
(b) Each of The Company agrees that, during the PW Group Shareholders solely on behalf of itself Standstill Period it shall not, and its respective Affiliates and Associates, shall cause each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) not to, directly or indirectly, in any manner, alone or in concert with others, make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or ▇▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (▇▇▇▇ or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇ Affiliates or any of their respective current or former Representatives, provided that the Company will be permitted to make objective statements that reflect the Company’s view with respect to factual matters concerning specific acts or determinations of ▇▇▇▇ Shareholders shall cause all shares or the ▇▇▇▇ Affiliates (or their respective current or former representatives) occurring after the date of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardthis Agreement.
(c) Nothing in For purposes of this Section 2 Agreement the terms “person” or “persons” shall prohibit mean any individual, corporation (including not-for-profit), general or in limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any way limit any actions that may be taken by the Nominees kind or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)nature.
Appears in 1 contract
Standstill. (a) Each From and after the Closing until the fourth (4th) anniversary of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 Closing Date (the “Covered Initial Standstill Period”), except as expressly set forth in this Agreementunless otherwise approved, neither it nor any of its Affiliates or Associates willan exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and it will shall cause each of its Affiliates and Associates not to, directly or indirectly in any mannerindirectly, alone or in concert with others:any other Person, except as otherwise expressly set forth in this Section 4.1(a):
(i) makeoffer to acquire or agree to acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing, engage inexcept
(A) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations, (B) acquisitions of Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), or (C) acquisitions or purchases of Company Shares pursuant to and in accordance with Article VI;
(ii) acquire, offer to acquire or agree to acquire any assets of the Company or any of its Subsidiaries that are material to the operations, financial condition or prospects of the Company and its Subsidiaries, taken as a whole;
(iii) induce or attempt to induce any third party (it being understood that a “third party” shall exclude Affiliates of Theta, which shall be subject to the restrictions under clause (i) above) to propose or offer to acquire Beneficial Ownership of Company Shares (other than the Company Shares held by the Shareholder Group as and to the extent permitted in accordance with Section 4.2);
(iv) seek the election, appointment or removal of any Directors or seek a change in the composition or size of the Board (in each case, other than through the appointment or removal of any Shareholder Designee);
(v) except (A) as otherwise required by applicable Law or (B) in case of a proposed Directed Issue, make or cause to be made any press release or similar public announcement or public communication relating to the way it intends to, or does, vote its Company Shares at any meeting of the shareholders of the Company or in connection with any action by written consent at or in which Company Shares are entitled to vote;
(vi) deposit any Company Shares into a voting trust or subject any Company Shares to any proxy, arrangement or agreement with respect to the voting of such any Company Shares or other agreement having a similar effect (provided that nothing in this clause (vi) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion, or (B) restricting the rights of Theta under Section 4.2);
(vii) other than as permitted under the foregoing clause (v), initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or in any way participate in, directly or indirectly, any “solicitation” solicitation of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person Person with respect to the voting of, any Voting Securities (provided that nothing in this clause (vii) shall be interpreted as preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion);
(viii) publicly call or publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders (other than pursuant to Section 4.2(e)); foregoing;
(ix) make any securities public statement or disclosure inconsistent with the
(x) assist, advise, induce or attempt to induce (or provide any confidential information of the Company or any securities convertible of its Subsidiaries for the purpose of assisting, advising, inducing or exchangeable into attempting to induce) any third party to take, or exercisable for take any such securities (collectivelyaffirmative action to do, “securities any of the Company”foregoing; or
(xi) for propose or seek an amendment or waiver of any of the election provisions of individuals this Section 4.1(a).
(b) From and after the Initial Standstill Period to the Board or date that the Shareholder Group ceases to approve shareholder proposalsBeneficially Own any Company Class B Shares (the “Subsequent Standstill Period”), unless otherwise approved, or become an exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as otherwise expressly set forth in this Section 4.1(b):
(i) seek the election, appointment or removal of any Directors or seek a “participant” change in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined composition or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of the nominees size of the Board at any shareholder meeting) (in each case, other than through the appointment or make or be the proponent removal of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseShareholder Designee);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any Shares into a voting trust or similar arrangement, or subject any securities of the Company Shares to any proxy, arrangement or agreement with respect to the voting thereof, except as expressly set forth of such any Company Shares or other agreement having a similar effect with respect to any matter on which the Company Class B Shares are not entitled to vote pursuant to Section 10 of the Articles of Association (provided that nothing in this Agreementclause (iii) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion or (B) restricting the rights of Theta under Section 4.2);
(iii) acquireinitiate, offer propose or propose to acquireotherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or agree to acquirein any way participate in, directly or indirectly, whether by purchaseany solicitation of proxies to vote, tender or exchange offer, through seek to influence any Person with respect to the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwisevoting of, any securities of the Company or any rights decoupled from the underlying securities of the Company that Voting Securities with respect to (A) any matter on which the Company Class B Shares are not entitled to the extent any vote pursuant to Section 10 of the PW Group ShareholdersArticles of Association, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) any proposal by Theta or its Affiliates to the extent none effect a Company Change of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in Control (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to in this clause (iv) shall be sold to the extent such personsinterpreted as preventing Theta and its Affiliates from voting its Company Shares, collectively with their Affiliates and Associateswhether in person or by proxy, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companyit determines in its sole discretion), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect publicly call or seek publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders with respect to effect (including, without limitation, by entering into A) any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving matter on which the Company or any Class B Shares are not entitled to vote pursuant to Section 10 of its subsidiaries or joint ventures or any the Articles of their respective securities Association (each, an “Extraordinary Transaction”other than pursuant to Section 4.2(e)), or (B) any proposal by Theta or its Affiliates to effect a Company Change of Control; or
(v) make any public statement or disclosure inconsistent with respect the foregoing. Notwithstanding anything to the contrary in the foregoing, during the Subsequent Standstill Period the Shareholder Group shall be permitted to offer to acquire, agree to acquire or acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing in the following circumstances (A) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations, (B) acquisitions of Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), (C) acquisitions or purchases of Company Shares pursuant to and in accordance with Article VI and (D) in connection with an Extraordinary Transactionoffer to acquire all of the outstanding Capital Stock of the Company, including the taking of any preparatory measures in connection with such offer, including obtaining undertakings from the Company’s shareholders to sell their shares in connection with such offer (such offer together with any preparatory measures, a “Shareholder Group Tender Offer”); provided, that Theta and its Affiliates shall have consulted with the Unaffiliated Directors at least twenty (20) Business Days prior to making such Shareholder Group Tender Offer. Upon the making of a Shareholder Group Tender Offer, the restrictions set forth in Section 4.1(b) shall be suspended until such time that the Shareholder Group Tender Offer is either withdrawn or completed. In the event that (i) a majority of Unaffiliated Directors recommend the Shareholder Group Tender Offer or (ii) following completion of such Shareholder Group Tender Offer, the Shareholder Group holds two thirds of the then-outstanding Voting Securities, then Section 4.1(b) shall automatically terminate upon completion of the Shareholder Group Tender Offer.
(c) If, at any time during the Initial Standstill Period or the Subsequent Standstill Period, (i) the Company enters into definitive documentation providing for a transaction that, if consummated, would constitute a Company Change of Control; (ii) the Board publicly announces its determination that (A) it will sell or dispose of, or has commenced a process by which it proposes to sell or dispose of, the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, (B) will consider offers or proposals for a transaction that, if consummated, would result in a Company Change of Control, or (C) the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, is for sale; or (iii) a tender, takeover, exchange or similar offer that, if consummated, would constitute a Company Change of Control is commenced or the subject of an announcement of a firm intention to be made or commenced by any Person or group of Persons acting in concert and the Board either (x) publicly recommends that shareholders of the Company tender their shares of the Company to the Person or group of Persons acting in concert making such offer or (y) fails to recommend that the shareholders of the Company reject such offer, in each case within ten (10) Business Days after the date of commencement or posting of such offer, then, in any such case, the provisions of Section 4.1(a) and Section 4.1(b) shall terminate immediately and all other provisions of this Agreement shall remain in full force and effect; provided, however, that this clause shall not if, (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) 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” transactionx) with respect to any security clause (other than a broad-based market basket i) of this sentence, such transaction is terminated without being consummated, (y) with respect to clause (ii) of this sentence, the Board has publicly announced that it has rescinded such determination or index(z) with respect to clause (iii) of this sentence, such offer or similar transaction is withdrawn, terminated or expires without being consummated or if the Board publicly recommends that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities shareholders of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose reject such offer, then, in any such case all provisions of or unwind call option, swap or hedging positions they may have as of Section 4.1 previously terminated shall be reinstated and shall be in full force and effect in accordance with their terms from and after the date hereof relating to securities of such termination, public announcement, withdrawal or expiration, as the Company);
(vi) (A) call case may be; provided further, that such reinstatement shall not prevent Theta or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into Affiliates from continuing to pursue any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of activities described in this Section 2(a4.1(c) shall not be deemed to prohibit any of that were definitively commenced after the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure date of such communicationstermination, but at or prior to the date of such reinstatement.
(bd) Each Notwithstanding anything to the contrary in this Section 4.1, nothing herein shall prohibit or prevent Theta or any of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associatesfrom acquiring securities of, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedor from entering into any merger or other business combination with, at the 2014 Annual Meetinganother Person that Beneficially Owns any Company Shares; provided, and further agrees however, that at the 2014 Annual Meeting it shall (i) vote such other Person shall have acquired such Company Shares or other securities other than in favor contemplation of the 2014 Company SlateTheta or any of its Affiliates acquiring the securities of, or entering into any such merger or other business combination with, such Person; (ii) vote the Beneficial Ownership of such Company Shares or other securities by such other Person shall not be a primary reason for ratification Theta or any of Ernst & Young LLP as its Affiliates acquiring the Company’s auditors for the 2014 fiscal yearsecurities of, or entering into any such merger or other business combination with, such other Person; and (iii) vote for “say on pay” resolutions recommended by the Board. At combined Beneficial Ownership of such Company Shares of Theta or any subsequent special shareholders’ meeting (of its Affiliates entering into the business combination and such other Person would not result in Theta or adjournments any of its Affiliates or postponements thereof) during the Covered Period each of the PW Group Shareholderssuch other Person being required, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election pursuant to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the BoardFinnish Securities Market Act, to commence a mandatory tender offer to acquire additional Company Shares.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Shareholder Agreement
Standstill. During the period starting on the date of this Agreement until the later of (i) the Expiration Date, and (ii) if (but only if) the Investors designate the Additional Director and the Additional Director is appointed to the Board in accordance with paragraph 2, the first anniversary of the appointment of the Additional Director to the Board (but not later than January 31, 2024) (such period, the “Cooperation Period”), each Investor will not, and will cause its controlling and controlled (and under common control) Affiliates and its and their respective representatives acting on their behalf (collectively with the Investors, the “Restricted Persons”) to not, directly or indirectly, without the prior consent, invitation, or authorization of or by the Company or the Board, in each case, in writing:
(a) Each acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party in the acquisition of record or beneficial ownership of any Voting Securities or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Investors (together with their Affiliates) having beneficial ownership of, or aggregate economic exposure to, more than 9.9% of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCompany's outstanding common shares at such time;
(b) (A) call or requisition (publicly or otherwise), each alone or in concert with others, a meeting of the Luxor Shareholders solely on behalf Company’s shareholders (or the setting of itself and its respective Affiliates and Associates and each of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Board or nominate or propose the date hereof until nomination of, or recommend the termination of this Agreement in accordance with Section 5 (nomination of, any candidate to the “Covered Period”)Board, except as expressly set forth in paragraph 6 of this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(iC) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, or (pursuant to Rule 14a-8 under D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the Exchange Act or otherwise)removal of any member of the Board;
(iic) form, join, encourage, influence, advise make any request for shareholder lists or in other books and records of the Company or any way participate of its subsidiaries under any statutory or regulatory provisions providing for shareholder access to books and records of the Company or its Affiliates;
(d) engage in any “groupsolicitation” (as such term is defined in the CBCA) of proxies with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company;
(e) make or submit to the Company or any of its Affiliates any proposal for, or offer of (with or without conditions), either alone or in concert with others, any tender offer, exchange offer, merger, consolidation, acquisition, sale of all or substantially all assets, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably require public disclosure by the Company or any of the Restricted Persons (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other shareholders of the Company);
(f) make any public proposal with respect to (A) any change in the number, term or identity of directors of the Company or the filling of any vacancies on the Board other than as provided under paragraph 6 of this Agreement, (B) any change in the capitalization, capital allocation policy or dividend policy of the Company, (C) any other change to the Board or the Company’s management or corporate or governance structure, (D) any waiver, amendment or modification to the Company’s constating documents, (E) causing the Company’s common shares to be delisted from, or to cease to be authorized to be quoted on, any securities exchanges;
(g) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the giving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (B) in conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board) (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter);
(h) form, join or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement1934, any such group, a “Section 13(d) Group”) with any persons (other thanas amended, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholdersany Voting Securities, a Section 13(d) Group that includes all or some other than solely with Affiliates of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) Investors with respect to any securities of the Company Voting Securities now or otherwise in any manner agreehereafter owned by them;
(i) enter into a voting trust, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting thereoflike), except as expressly set forth in each case other than (A) this AgreementAgreement (B) solely with Affiliates of the Investors or (C) granting proxies in solicitations approved by the Board;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(vj) engage in any short sale or any purchase, sale sale, or grant of any option, warrant, convertible security, stock share appreciation right, or other similar right (including, without limitation, including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market any index fund, exchange traded fund, benchmark fund or broad basket or indexof securities) that includes, relates to to, or derives any significant part of its value from a decline in the market price or value of any of the securities of the Company and would, in the aggregate or individually, result in the Investors ceasing to have a “net long position” in the Company;
(it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell k) sell, offer, or otherwise dispose of agree to sell, all or unwind call optionsubstantially all, directly or indirectly, through swap or hedging positions they may have as transactions or otherwise, voting rights decoupled from the underlying common shares of the date hereof relating Company held by a Restricted Person to securities of the Company)any Third Party;
(vil) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) call or seek bringing litigation against the Company to call, alone or enforce any provision of this Agreement instituted in concert accordance with others, any meeting of shareholders, including by written actionand subject to paragraph 21, (B) seek representation onmaking counterclaims with respect to any proceeding initiated by, or nominate any candidate toon behalf of, the Board, except as set forth hereinCompany or its Affiliates against a Restricted Person, (C) seek bringing bona fide commercial disputes that do not relate to the removal subject matter of any member of the Boardthis Agreement, (D) solicit consents from shareholders exercising statutory appraisal rights or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders responding to or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwisecomplying with validly issued legal process;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixm) enter into any discussions, negotiations, agreements agreements, arrangements, or understandings (whether written or oral) with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect that the Restricted Persons are prohibited from taking pursuant to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis paragraph 11; or
(xn) publicly request, directly make any request or indirectly, submit any amendment proposal to amend or waiver of waive the foregoing. The foregoing provisions terms of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Agreement (including this subclause), in each case publicly or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and which would not reasonably be expected to, require any to result in a public announcement or disclosure of such communications.
(b) Each request or proposal; provided, that the restrictions in this paragraph 11 shall terminate automatically upon the earliest of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall following: (i) vote in favor any material breach of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended this Agreement by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on a failure to appoint the New Directors in accordance with paragraph 1, a failure to appoint the Additional Director in accordance with paragraph 2, a failure to appoint a Replacement New Director in accordance with paragraph 6, a failure to form the Review Committee, or a failure to issue the Press Release in accordance with paragraph 13) upon five (5) business days’ written notice by any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues Investors to the BoardCompany if such breach has not been cured within such notice period, provided that the Investors are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (ii) consistent the Company’s entry into (x) a definitive written agreement with his fiduciary duties as a director respect to any Extraordinary Transaction that, if consummated, would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company (excluding any assets being sold in accordance with the results of the review conducted by the Review Committee described in paragraph 3 hereof), or (y) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the common shares of the Company (including on an as-converted basis) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be counted toward this clause (y)) and (iii) the commencement of any take-over bid (by any person or group other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Board does not recommend that its shareholders reject such take-over bid (it being understood that nothing herein will prevent the Company from issuing a “stop, look and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder listen” communication in response to the commencement of any take-over bid). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this paragraph 11) will prohibit or any Affiliates or Associates thereof shall seek to do indirectly through restrict any of the Nominees Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a Third Party, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (C) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (D) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company, or (E) providing their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)views privately to the Company in accordance with paragraph 12.
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇. ▇▇▇▇▇▇▇ Shareholders solely on behalf agrees that, for a period of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that three years from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, unless such shall have been specifically invited in writing by Trex, neither it ▇▇. ▇▇▇▇▇▇▇ nor any of its Affiliates his “associates” or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitationaffiliates” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used in Rule 12b-2 under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d▇▇▇) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise will in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquiremanner, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iva) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, in or in any way assist or facilitate (including acting as a financing source) any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any securities of any kind or class, whether equity or debt, or assets of any Trex Affiliate (or of any successor to or person in control of Trex or having beneficial ownership thereof), except that this clause (i) shall not prohibit ▇▇. ▇▇▇▇▇▇▇ from acquiring any securities of Trex of any kind or class, whether equity or debt, of any Trex Affiliate (or of any successor to or person in control of Trex or having beneficial ownership thereof) provided that the beneficial ownership of such securities by (x) ▇▇. ▇▇▇▇▇▇▇ and (y) ▇▇. ▇▇▇▇▇▇▇’▇ “associates” and “affiliates” (as such terms are defined in Rule 12b-2 under the ▇▇▇▇ ▇▇▇) does not in the aggregate equal or exceed ten percent (10%) of Trex’s outstanding securities and securities deemed outstanding pursuant to Rule 13d-3(d)(1) under the 1934 Act, (ii) any tender or exchange offer, mergermerger or other business combination involving any Trex Affiliate, consolidation, acquisition, scheme, arrangement, business combination, (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction Trex Affiliate, or (Biv) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders solicitation of proxies or Affiliate or Associate thereof from offering consents to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the vote any voting securities of the Company if a member of the Company’s current any Trex Affiliate, (b) form, join or previous management, in any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company way participate in a “take privategroup” transaction subject to (as defined in Rule 13e-3 promulgated 13d-5 under the Exchange 1934 Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(viic) take any action in support of or which might force any Trex Affiliate to make a public announcement regarding any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term types of directors or to fill any vacancies on the Board, except as matters set forth herein, in clause (Ba) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchangeabove, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixd) enter into any discussions, negotiations, agreements discussions or understandings arrangements with any Third Party third party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to Nothing herein will prohibit any of the PW Group/Luxor/▇▇. ▇▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require selling any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal security of any directors whose removal Trex Affiliate held by him provided that such sale is not recommended by the Boardpermissible under applicable federal and state securities laws and in accordance with any contractual restrictions.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Separation Agreement (Trex Co Inc)
Standstill. At any time prior to the fifth anniversary of the Closing Date:
(a) Each of the PW Group Shareholders solely on behalf of itself Werfen covenants and agrees that it and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willshall not, and it will cause each of its Affiliates and Associates shall not to, directly or indirectly in any manner, alone or act in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies Person so as to form a group (as such terms are term is used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 13d promulgated under the Exchange Act) (other than a “solicitation” or acting as a “participant” to, in support of all of the nominees of the Board at any shareholder meeting) manner, acquire, agree to acquire or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether any Common Stock in excess of 5% of the outstanding Shares at the time of such acquisition, without the prior approval of the board of directors of the Company except for (i) Shares purchased pursuant to the anti-dilution right provided for in Section 6.2, (ii) Shares issued as a dividend on or other distribution with respect to or in exchange, replacement or in subdivision of, the Purchased Shares, (iii) Shares purchased by purchaseor on behalf of a pension, tender retirement, 401(k) or exchange offersimilar plan provided, however, that the Shares acquired pursuant to this clause (iii) are voted by the plan participants or by a trustee for the benefit of the participants or (iv) Shares issued pursuant to the exercise the Warrant.
(b) For so long as Werfen and its Affiliates own greater than 2 1/2 percent of the then outstanding Shares, Werfen shall not, directly or indirectly, through the acquisition one or more intermediaries or otherwise, and shall cause each of control its Affiliates not to, singly or as part of another person, by joining a partnership, limited partnership, syndicate or other group (including any as those terms are used within the meaning of Section 13(d13(d)(3) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% :
(i) deposit any Shares in the aggregate of the shares of Common Stock outstanding at such time a voting trust or (B) subject any Shares to any arrangement or agreement with respect to the extent none voting of such Shares;
(ii) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the PW Group ShareholdersExchange Act) with respect to any Shares (including by the execution of actions by written consent), become a "participant" in an "election contest" (as such terms are defined or used in Rule 14a-11 under the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1Exchange Act) with respect to the PW Group Shareholders (together with their Affiliates and Associates and Company or seek to advise, encourage or influence any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) Person or entity with respect to the Luxor Shareholders (together with their Affiliates and Associates and voting of any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such timeShares; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;or
(iviii) effect join any partnership, limited partnership, syndicate or seek to effect (includingother group, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable otherwise act in concert with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect for the purpose of acquiring, holding, voting or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition disposing of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”)Shares, or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude otherwise become a "person" within the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof meaning of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(413(d)(3) of the Exchange Act;
Act (viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal in each case other than solely with respect to its Affiliates who are bound by the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions terms of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from From the date hereof until the termination date that is the later of this Agreement in accordance with Section 5 (a) three (3) years from the “Covered Period”)date hereof and (b) the date upon which there are no directors designated by the Shareholders who are members of the Board, except as expressly set forth in this Agreementwithout the prior consent of the Company, neither it nor any of its the Shareholders and their Affiliates (including commonly controlled or Associates willmanaged investment funds) shall not, and it will cause each of its Affiliates and Associates shall not offer or agree to, (i) directly or indirectly in purchase or acquire, agree to acquire, or offer to acquire, beneficial ownership of any mannerequity or debt securities of the Company, alone any warrant or option to purchase such securities, any security convertible into any such securities, any options, convertible securities or Warrants of the Company or any other right to acquire such securities, if, after giving effect to such acquisition, the Shareholders and their Affiliates, individually or in concert with others:
the aggregate, would Beneficially Own more than thirty percent (i30%) of the Voting Securities, (ii) directly or indirectly propose, enter into or agree to enter into any merger, business combination, recapitalization, restructuring, change of control transaction or other extraordinary transaction involving any Group Company, (iii) make, engage in, or in any way participate or engage in, directly or indirectly, any “solicitation” solicitation of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage advise or influence any person with respect to the voting of, any voting securities of any securities Group Company, (iv) bring any action or otherwise act to contest the validity of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsrestrictions set forth in this Section 2.5, or become seek a “participant” in any contested “solicitation” for the election release of directors with respect to the Company such restrictions, (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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(iiv) form, join, encourage, influence, advise join or in any way participate in any a “group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereofAct) with respect to any voting securities of the any Group Company or otherwise in except for any manner agree, attempt, seek or propose to deposit any securities group constituting solely of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such timeits Affiliates, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member directors from the Board or a change in the size or composition of the Board, Board (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request including voting for any shareholder list directors not nominated by the Board), except as otherwise provided in the Articles of Amendment or other Company books and recordsthis Agreement, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation extent permitted under this Section 2.5, propose or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or understandings oral) with any Third Party other Person regarding any possible purchase or sale of any securities or assets of any Group Company (other than securities owned by the Shareholders), (viii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (ix) deposit any Securities or Common Stock in a voting trust or similar arrangement or subject any Securities or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Securities or Common Stock to any person not affiliated with the Shareholders or Company management; (x) enter into any swap or any other agreement, transaction or series of transactions that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of the foregoingWarrants or shares of Common Stock underlying the Warrants, whether any such transaction, swap or adviseseries of transactions is to be settled by delivery of securities, assist, in cash or otherwise (xi) (a) finance (or arrange financing for) any Person or (b) otherwise knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoingadvise another Person, or otherwise take or cause any action or make any statement inconsistent in each case, in connection with any of the foregoing; or
or (xxii) publicly requestdisclose any intention, directly plan or indirectlyarrangement prohibited by, or inconsistent with, the foregoing or make, or take, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and action that would not reasonably be expected to, require to cause the Company to make a public announcement regarding any public disclosure of such communications.
(b) Each intention of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything take an action that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder the foregoing; provided, however, that the foregoing shall not restrict the ability of any member of the Board pursuant to the terms of the Articles of Amendment or this Agreement from exercising such Person’s fiduciary duties provided thereunder or the ability of the Shareholders to make private proposals to the Board or the Chief Executive Officer of the Company regarding any Affiliate merger, business combination, recapitalization, restructuring, change of control transaction or Associate thereof)other extraordinary transaction involving any Group Company.
Appears in 1 contract
Standstill. (a) Each Subject to Section 6(b), for a period of nine (9) months from obtaining the Stockholder Approval, to the extent that Dong-A is not then entitled to designate a majority or more of the PW Group Shareholders solely directors constituting the Board, without the prior written approval of the Board in its sole discretion (which shall exclude the vote of the DA Designees), other than with respect to (a) compensation granted to any nominees of Dong-A in respect of their service as members of the Board and (b) the transactions contemplated by the Purchase Agreement, Dong-A hereby agrees, on its own behalf and on behalf of itself and its respective Affiliates and AssociatesAffiliates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it Dong-A nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate inshall, directly or indirectly, acquire any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) equity, debt or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any convertible securities of the Company (including any derivative, synthetic or other securities based on or related to any Company securities), or any securities convertible or exchangeable into or exercisable for any such securities interest therein.
(collectively, “securities b) The restrictions under Section 5(a) and Section 6(a) shall terminate automatically upon the earliest to occur of the Company”(i) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to five (5) business days after the Company (as such terms are defined or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” has been notified that it is in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent material breach of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes provision of this Agreement, any if such groupbreach has not been cured within such notice period, provided that Dong-A is not in material breach of this Agreement at the time such notice is given; (ii) the announcement by the Company that it has entered into a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) definitive agreement with respect to any securities transaction that would result in the acquisition by any Person or group of Persons of more than 50% of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
Common Stock; (iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, the commencement of any tender or exchange offeroffer (by any Person other than Dong-A or its Affiliates) which, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the othersif consummated, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and acquisition by any other persons with whom any Person or “group” of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 more than 50% of the Exchange ActCompany Common Stock, over more than 19.99% in where the aggregate of Company files with the shares of Common Stock outstanding at SEC a Schedule 14D-9 (or any amendment thereto) that does not recommend that its stockholders reject such time tender or exchange offer (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock shall prevent the Company from issuing a “stop, look and listen” communication pursuant to be sold Rule 14d-9(f) promulgated under the Exchange Act in response to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result commencement of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving offer); and (iv) the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof commencement of any securities of the Company into any tender voluntary bankruptcy or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with insolvency proceeding in respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Investor Rights Agreement (NeuroBo Pharmaceuticals, Inc.)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesHolder agrees that, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees at any time that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies such Holder beneficially owns (as such terms are term is used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d) of the Exchange Act) more than 5.00% of the total number of outstanding shares of Common Stock, it shall not, nor will it cause any of its affiliates to, (a) take any action to acquire additional shares of Common Stock (other than, for the avoidance of doubt, any shares issuable as a result of obligations in effect as of the date hereof, and any stock splits, stock dividends, reorganizations, recapitalizations and the like) that would result in any increase of the fraction obtained by dividing (A) the number of shares of Common Stock beneficially owned by such Holder, and (B) the total number of outstanding shares of Common Stock, in each case as of the date hereof; (b) act, alone or consents jointly or in concert with others, to vote, or seek to advisecontrol the Company, encourage including, without limitation, by having or influence any person with respect to seeking one or more representatives serve on the voting board of any securities of the Company directors or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities become an executive officer of the Company”; (c) for the election sell, transfer or otherwise dispose of individuals any of its shares of Common Stock to the Board any person that, to such Holder’s knowledge, alone or to approve shareholder proposalsjointly or in concert with others, 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 would become, as a “participant” in support result of all of such sale, transfer or disposition, the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” beneficial owner (as such term is defined used in Section 13(d)(313(d) of the Exchange Act for purposes Act) of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.9910% in the aggregate of the shares of Common Stock outstanding at or has publicly stated an intent to exercise control over the Company; provided that this clause (c) shall not apply to (A) any sale, transfer or disposition, in a transaction or series of transactions, through an underwriter, broker or dealer where such time Holder does not know the identity of the purchaser of the shares or (B) for the avoidance of doubt, any sale, transfer or disposition effected on any securities exchange so long as neither such Holder nor any underwriter, broker or dealer involved in such transaction solicited or arranged for the solicitation of orders to the extent none buy such shares in anticipation of the PW Group Shareholdersor in connection with such sale; or (d) exercise any voting rights it has, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group together with any of the othersits affiliates, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 excess of 9.90% of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the total number of outstanding shares of Common Stock so long entitled to vote as of the beneficial ownership interest of relevant record date for such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transactionvote; provided, however, provided that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company this clause (d) shall not apply with respect to any Extraordinary Transaction or proposal for which such failure to vote would have the effect of a vote against such proposal, and (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets for the avoidance of the Company if the sale of doubt, such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) 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) Holder shall maintain its voting rights with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as not exceeding, together with its affiliates, 9.90% of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor total number of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all outstanding shares of Common Stock beneficially owned, directly or indirectly, by it entitled to vote as of the applicable relevant record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardsuch vote.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Registration Rights Agreement (Blaize Holdings, Inc.)
Standstill. (a) Each Effective as of the PW Group Shareholders solely execution of this Agreement, each Investor Party, on behalf of itself and its respective Affiliates controlled affiliates, hereby agrees that it shall not, and Associatesthat its controlled affiliates shall not, each of other than as expressly set forth herein, directly or indirectly, in any manner (whether through or in concert with third parties or otherwise): (i) except for the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇ ▇▇▇▇▇, nominate or recommend for nomination any person for election at the 2018 Annual Meeting; (ii) submit any proposal for consideration at, or bring any other business before, the 2018 Annual Meeting; (iii) initiate, encourage or participate in any “withhold” or similar campaign with respect to the 2018 Annual Meeting; or (iv) publicly or privately encourage or support any other stockholder to take, or support in the taking of, any of the actions or matters described in this Section 4(a). Effective as of the execution of this Agreement, ▇▇▇▇ Shareholders solely Capital hereby irrevocably withdraws the Notice of Nominations of Directors and Stockholder Proposals submitted to the Company on behalf of itself August 1, 2019 and agrees to inform the applicable examiner at the Securities and Exchange Commission that it will not be pursuing its respective Affiliates and Associates hereby severally and not jointly agrees that from proxy statement.
(b) From the date hereof until the termination of this Agreement until the Expiration Date or until such earlier time as the restrictions in accordance with this Section 5 (4(b) terminate as provided herein, each Investor Party agrees that, unless consented to by the “Covered Period”)Company, except as permitted by Section 3(a)(ii) or as otherwise expressly set forth in permitted by this Agreement, neither it nor any of its Affiliates or Associates controlled affiliates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, in any “solicitation” of proxies manner (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to votewhether through, or seek to advisein concert with, encourage third parties or influence any person with respect to the voting otherwise), other than in support of any securities and in favor of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board TSR Slate or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇ ▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;applicable:
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(ivi) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any personunderstandings), offer or propose (whether publicly or privately) to effect, or cause or participate in, or in any way assist knowingly assist, encourage, support or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction the following involving the Company or any of its subsidiaries or joint ventures its or their securities or a material amount of assets or businesses of the Company and its subsidiaries: any tender offer or exchange offer, merger, acquisition, business combination, reorganization, restructuring, recapitalization, sale or acquisition of their respective securities material assets, liquidation or dissolution (eacheach and collectively, an “Extraordinary Transaction”), or make publicly comment, or privately comment in a manner reasonably expected not to be held in confidence, on any public statement third party proposal regarding any Extraordinary Transaction by any third party prior to or following such proposal becoming public; provided that the Investor Parties shall be permitted to (A) publicly and privately disclose how they intend to vote or act with respect to an such Extraordinary Transaction; providedand (B) sell or tender their shares of Common Stock, howeverand otherwise receive consideration, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect pursuant to any Extraordinary Transaction so long as no Investor Party has assisted, encouraged, supported or facilitated (Bwhether publicly or privately) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActExtraordinary Transaction;
(vii) engage in enter into, offer or propose to enter into any short sale or any purchase, sale or grant of any securities (or beneficial ownership thereof) of the Company or any option, warrant, derivative, convertible security, security or stock appreciation right, or other similar right (including, including without limitation, any put or call option or “swap” swap transaction) with respect to or having any security measurement relating to any securities (or beneficial ownership thereof) of the Company;
(iii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in or assist any person not a Party to this Agreement in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Common Stock (other than a broad-based market basket such encouragement, advice or indexinfluence that is consistent with Company management’s recommendation in connection with such matter);
(iv) that includes, relates advise or encourage any person with respect to or derives the voting of any significant part of its value from a decline in the market price or value of the securities of the Company at the 2018 Annual Meeting, any annual meeting held prior to the Expiration Date or any special meeting of stockholders, or seek to do so (it being understood other than such encouragement, advice or influence that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of is consistent with the Company’s recommendation in connection with such matter);
(v) take any action challenging the validity or enforceability of this Agreement;
(vi) (A) call seek or seek knowingly encourage any person to callsubmit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, alone encourage or in concert take any other action with others, any meeting of shareholders, including by written action, (B) seek representation on, respect to the election or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member directors or with respect to the submission of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwisestockholder proposal;
(vii) take form, join in or in any action way participate in support of a partnership, limited partnership, syndicate or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Companyother group, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Boardwithout limitation, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to group defined under Section 12(g)(413(d) of the Exchange Act;
(viii) make any public disclosureother than expressly permitted under this Agreement, announcement seek, alone or statement regarding any intentin concert with others, purpose, plan or proposal with respect to representation on the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;; and
(ix) enter into seek or request permission to do any discussionsof the foregoing, negotiationsmake any request to amend, agreements waive or understandings with terminate any Third Party provision of this Section 4 (including, without limitation, this Section 4(b)), or make or seek permission to make any public announcement with respect to any of the foregoing; provided that an Investor Party may make a confidential request to the Board that the Company amend or waive the terms of this Agreement in a manner that would not be reasonably likely to require public disclosure by the Company or such Investor Party. As used in this Agreement, the term “affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act, and shall include all persons or adviseentities that, assistat any time during the term of this Agreement, knowingly encourage become an affiliate of any person or seek entity referred to persuade any Third Party to take any action or make any statement with respect to any of in this Agreement. For the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions purposes of this Section 2(a) 4, the term “Expiration Date” shall not be deemed to prohibit any mean 5:00 p.m., Eastern Time, on December 30, 2019, unless the Repurchase and payment of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directorsSettlement Payment are consummated prior to such time, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with which case it shall mean the opening of the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure advance notice period in respect of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ annual meeting (or adjournments or postponements thereof) occurring during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardcalendar year 2027.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Settlement Agreement (TSR Inc)
Standstill. (a) Each of Purchaser agrees that, during the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of Standstill Period (unless specifically requested in writing by the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willsuch Purchaser shall not, and it will shall cause each of its Affiliates and Associates (collectively and individually, the “Purchaser Affiliates”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsstockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, 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) (for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of Directors at any shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not such Purchaser’s Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser (together with their Affiliates and Associates and any other persons with whom any its Purchaser Affiliates), having Beneficial Ownership of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 number of shares of Company Common Stock that exceeds the number of shares of Company Common Stock that would have been issuable upon conversion of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding Notes at such time (assuming for such purposes that all of the Notes issued at the Closing remained outstanding), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (Bor the exercise thereof) to any SL Affiliated Director as compensation for their membership on the extent none Board of the PW Group ShareholdersDirectors; provided, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the extent such personsPurchaser and such Purchaser’s Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock so long as Stock. For the beneficial ownership interest avoidance of such personsdoubt, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a4.03(a)(iii) shall not be deemed to prohibit any restrict conversion of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are Notes and shall not intended to, and would not reasonably be expected to, require violated by any public disclosure conversion rate adjustment. For purposes of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).this
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each member of the ▇▇▇▇ Group agrees that, during the Covered Period, (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company’s directors not including the ▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, and it will cause each of its Affiliates and Associates the “▇▇▇▇ Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇who are not ▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and would result in the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group (together with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.07.5% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthe ▇▇▇▇ Group and the ▇▇▇▇ Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationStock;
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the ▇▇▇▇ Group or any ▇▇▇▇ Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) ▇▇▇▇ Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”), that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇the ▇▇▇▇ Shareholders Group or an a ▇▇▇▇ Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/▇▇the ▇▇▇▇ Shareholders Group or an a ▇▇▇▇ Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(vvi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vivii) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation onrepresentation, on or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, or (F) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(viiviii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, ; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, ; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its or their respective current or former officers, or any of its or their respective directors;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements agreements, or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xxii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Group or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each member of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedGroup shall, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group ShareholdersPeriod, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date it, or by any ▇▇▇▇ Affiliate, to be present for quorum purposes and to be voted voted, at the Company’s annual and special stockholder meetings and at any adjournments or postponements thereof, and further agrees that at all such meetings they shall vote in favor of the election to the Board of those director nominees (i) all directors nominated for election by the Board for election at such meeting and against the removal of any directors whose removal is not recommended by (ii) in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting, other than with respect to (a) an Extraordinary Transaction, (b) any proposed issuance of Company securities or (c) any proposal to implement any takeover defense measures or any other proposal that would diminish or otherwise impair in any material respect the rights of Company shareholders.
(c) Nothing The ▇▇▇▇ Group acknowledges that the ▇▇▇▇ Designee shall have all of the rights and obligations, including fiduciary duties to the Company and its stockholders, of a director under applicable law and the Company’s organizational documents while the ▇▇▇▇ Designee is serving on the Board. Notwithstanding the foregoing, nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements ▇▇▇▇ Designee acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Company.
Appears in 1 contract
Sources: Cooperation Agreement (Allison Transmission Holdings Inc)
Standstill. During the Cooperation Period, each ▇▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (aand under common control) Each of the PW Group Shareholders solely on behalf of itself Affiliates and its and their respective Affiliates and Associates, each of the Luxor Shareholders solely Representatives acting on their behalf of itself and its respective Affiliates and Associates and each of (collectively with the ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (Parties, the “Covered PeriodRestricted Persons”) to not, directly or indirectly, without the prior written consent, invitation, or authorization of the Company or the Board:
(i) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of or economic exposure to any Voting Securities (as defined below) or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the ▇▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of more than 12.49% of the Common Stock outstanding at such time, or aggregate economic exposure to more than 14.9% of the Common Stock outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s shareholders or act by written consent in lieu of a meeting (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in this AgreementSection 1, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(iC) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company; provided that nothing in this Agreement will prevent the ▇▇▇▇▇▇▇ Parties or their Affiliates from taking actions in furtherance of identifying any Replacement New Director pursuant to Rule 14a-8 Section 1(c), as applicable;
(iii) make any request for stock list materials or other books and records of the Company or any of its subsidiaries under Section 21.218 of the TBOC or any other statutory or regulatory provisions providing for shareholder access to books and records;
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act (as defined below)) of proxies or otherwise);
(ii) form, join, encourage, influence, advise consents with respect to the election or in removal of directors of the Company or any way participate in any other matter or proposal relating to the Company or become a “groupparticipant” (as such term is defined in Section 13(d)(3) Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act for purposes of this Agreement, Act) in any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all solicitation of proxies or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementconsents;
(iiiv) acquire, offer make or propose submit to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent its Affiliates any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such timeproposal for, or offer of (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companywithout conditions), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganizationrestructuring, liquidation, dissolution, sale or acquisition other disposition of material assets, liquidation, dissolution all or other substantially all of the Company’s assets or similar extraordinary transaction involving the Company or any of (including its subsidiaries or and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), ) either publicly or make any in a manner that would reasonably be expected to require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise dispose of or unwind call option, swap or hedging positions they may have participating in any Extraordinary Transaction on the same basis as of the date hereof relating to securities other shareholders of the Company);
(vi) make any public proposal with respect to (A) call or seek to call, alone or any change in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term identity of directors of the Company or to fill the filling of any vacancies on the Board, except Board other than as set forth hereinprovided under Section 1 of this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in to the Board or the Company’s management, business governance or corporate structure, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Restated Certificate of Incorporation Formation, as amended from time to time, or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company Common Stock to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiivii) make knowingly encourage or advise any public disclosure, announcement Third Party or statement regarding knowingly assist any intent, purpose, plan Third Party in encouraging or proposal advising any other person with respect to (A) the Boardgiving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (B) conducting any type of referendum relating to the Company, its management, policies other than such encouragement or affairs, any of its securities or assets or this Agreement advice that is inconsistent consistent with the provisions of Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement;
(viii) form, join or act in concert with any “group,” as defined in Section 13(d)(3) of the Exchange Act, with respect to any Voting Securities, other than solely with Affiliates of the ▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(ix) enter into any discussionsa voting trust, negotiations, agreements arrangement or understandings with any Third Party agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Affiliates of the foregoing▇▇▇▇▇▇▇ Parties or (C) granting proxies in solicitations approved by the Board;
(x) engage in any short sale or any purchase, sale, or advisegrant of any option, assistwarrant, knowingly encourage convertible security, share appreciation right, or seek other similar right (including any put or call option or “swap” transaction) with respect to persuade any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of the securities of the Company and would, in the aggregate or individually, result in the ▇▇▇▇▇▇▇ Parties ceasing to have a “net long position” in the Company;
(xi) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xii) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xiii) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action or make any statement with respect that the Restricted Persons are prohibited from taking pursuant to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis Section 3(c); or
(xxiv) publicly request, directly make any request or indirectly, submit any amendment proposal to amend or waiver of waive the foregoing. The foregoing provisions terms of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Agreement (including this subclause), in each case publicly or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and which would not reasonably be expected to, require any to result in a public announcement or disclosure of such communications.
(brequest or proposal. The restrictions in this Section 3(c) Each shall terminate automatically upon the earliest of the PW Group Shareholders solely on behalf following: (A) any material breach of itself and its respective Affiliates and Associates, each of this Agreement by the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each Company (including a failure to appoint the New Directors to the Board in accordance with Section 1(a) or to issue the Press Release in accordance with Section 4) upon five (5) business days’ written notice by any of the ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and Parties to the Company if such breach has not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedbeen cured within such notice period, at the 2014 Annual Meeting, and further agrees provided that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇▇ Shareholders shall cause all shares Parties are not in material breach of Common Stock beneficially owned, directly this Agreement at the time such notice is given or indirectly, by it as prior to the end of the applicable record date notice period; (B) the Company’s entry into (x) a definitive agreement with respect to be present for quorum purposes and to be voted any Extraordinary Transaction that would result in favor the acquisition by any person or group of more than 50% of the election to Voting Securities or assets having an aggregate value exceeding 50% of the Board aggregate enterprise value of those director nominees nominated the Company; (y) one or more definitive agreements providing for election the acquisition by the Board and against Company or its subsidiaries of one or more businesses or assets (excluding, for the removal avoidance of any directors whose removal is not recommended by doubt, acquisitions of equipment or facilities in ordinary course business operations) having an aggregate value exceeding 25% of the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director market capitalization of the Company during the Cooperation Period or (includingz) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the Common Stock (including on an as-converted basis, without limitationand including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, voting on any matter submitted convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for consideration (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Board, participating in deliberations Company or discussions one or more of its subsidiaries shall not be counted toward this clause (z)); and (C) the Board and making suggestions commencement of any tender or raising issues to exchange offer (by any person or group other than the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇▇ Shareholder Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any Affiliates person or Associates thereof shall seek group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to do indirectly through Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 3(c)) will prohibit or restrict any of the Nominees Restricted Persons from (I) making any public or their Replacements anything private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a Third Party that is party to such Extraordinary Transaction, (II) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (III) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (IV) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company or (V) providing its views privately to the Board or the Company’s Chief Executive Officer, Chief Financial Officer, General Counsel, or members of the investor relations team made available for communications involving broad-based groups of investors (including through participation in investor meetings and/or conferences) regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be prohibited if done expected to require public disclosure of such communications or requests by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder the Company or any Affiliate or Associate thereof)of the Restricted Persons.
Appears in 1 contract
Standstill. During the Cooperation Period, each ▇▇▇▇▇▇▇ Party will not, and will cause its controlling and controlled (aand under common control) Each of the PW Group Shareholders solely on behalf of itself Affiliates and its and their respective Affiliates and Associates, each of the Luxor Shareholders solely Representatives acting on their behalf of itself and its respective Affiliates and Associates and each of (collectively with the ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (Parties, the “Covered PeriodRestricted Persons”) to not, directly or indirectly, without the prior written consent, invitation or authorization of the Company or the Board:
(i) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of or economic exposure to any Voting Securities (as defined below) or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the ▇▇▇▇▇▇▇ Parties (together with their Affiliates) having beneficial ownership of more than 9.9% of the Common Stock outstanding at such time, or aggregate economic exposure to more than 15.0% of the Common Stock outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s shareholders or act by written consent in lieu of a meeting (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in this AgreementSection 1, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(iC) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company; provided that nothing in this Agreement will prevent the ▇▇▇▇▇▇▇ Parties or their Affiliates from identifying any Replacement New Director pursuant to Section 1(d), as applicable;
(iii) make any request for stock list materials or other books and records of the Company or any of its subsidiaries under Georgia Code § 14-2-1602 or any other statutory or regulatory provisions providing for shareholder access to books and records of the Company;
(iv) engage in any “solicitation” (as such term is used in the proxy rules but including, for the avoidance of doubt, solicitations of ten (10) or fewer shareholders which would otherwise be excluded from the definition of “solicitation” pursuant to Rule 14a-8 14a-2(b)(2) promulgated under the Exchange Act (as defined below)) of proxies or otherwise);
(ii) form, join, encourage, influence, advise consents with respect to the election or in removal of directors of the Company or any way participate in any other matter or proposal relating to the Company or become a “groupparticipant” (as such term is defined in Section 13(d)(3) Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act for purposes of this Agreement, Act) in any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all solicitation of proxies or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementconsents;
(iiiv) acquire, offer make or propose submit to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent its Affiliates any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such timeproposal for, or offer of (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companywithout conditions), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, financing, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganizationrestructuring, liquidation, dissolution, spin-off, split-off or other similar separation of one or more business units, sale or acquisition other disposition of material assets, liquidation, dissolution all or other substantially all of the Company’s assets or similar extraordinary transaction involving the Company or any of (including its subsidiaries or and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), ) either publicly or make any in a manner that would reasonably be expected to require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise dispose of or unwind call option, swap or hedging positions they may have participating in any Extraordinary Transaction on the same basis as of the date hereof relating to securities other shareholders of the Company);
(vi) make any public proposal with respect to (A) call or seek to call, alone or any change in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term identity of directors of the Company or to fill the filling of any vacancies on the Board, except Board other than as set forth hereinprovided under Section 1 of this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in to the Board or the Company’s management, business governance or corporate structure, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Restated Certificate of Incorporation Formation, as amended from time to time, or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company Common Stock to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiivii) make knowingly encourage or advise any public disclosure, announcement Third Party or statement regarding knowingly assist any intent, purpose, plan Third Party in encouraging or proposal advising any other person with respect to (A) the Boardgiving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (B) conducting any type of referendum relating to the Company, its management, policies other than such encouragement or affairs, any of its securities or assets or this Agreement advice that is inconsistent consistent with the provisions of Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement;
(viii) form, join or act in concert with any “group,” as defined in Section 13(d)(3) of the Exchange Act, with respect to any Voting Securities, other than solely with Affiliates of the ▇▇▇▇▇▇▇ Parties with respect to Voting Securities now or hereafter owned by them;
(ix) enter into any discussionsa voting trust, negotiations, agreements arrangement or understandings with any Third Party agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Affiliates of the foregoing▇▇▇▇▇▇▇ Parties or (C) granting proxies in solicitations approved by the Board;
(x) engage in any short sale or any purchase, sale, or advisegrant of any option, assistwarrant, knowingly encourage convertible security, share appreciation right, or seek other similar right (including any put or call option or “swap” transaction) with respect to persuade any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of the securities of the Company and would, in the aggregate or individually, result in the ▇▇▇▇▇▇▇ Parties ceasing to have a “net long position” in the Company;
(xi) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xii) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 9, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xiii) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action or make any statement with respect that the Restricted Persons are prohibited from taking pursuant to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis Section 2(c); or
(xxiv) publicly request, directly make any request or indirectly, submit any amendment proposal to amend or waiver of waive the foregoing. The foregoing provisions terms of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Agreement (including this subclause), in each case publicly or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and that would not reasonably be expected to, require any to result in a public announcement or disclosure of such communications.
(brequest or proposal. The restrictions in this Section 2(c) Each shall terminate automatically upon the earliest of the PW Group Shareholders solely on behalf following: (A) any material breach of itself and its respective Affiliates and Associatesthis Agreement by the Company (including a failure to appoint the New Directors to the Board in accordance with Section 1(a), each of a failure to appoint a Replacement New Director to the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each Board in accordance with Section 1(d), or to issue the Press Release in accordance with Section 3) upon five (5) business days’ written notice by any of the ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and Parties to the Company if such breach has not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedbeen cured within such notice period, at the 2014 Annual Meeting, and further agrees provided that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇▇ Shareholders shall cause all shares Parties are not in material breach of Common Stock beneficially owned, directly this Agreement at the time such notice is given or indirectly, by it as prior to the end of the applicable record date notice period; (B) the Company’s entry into (x) a definitive agreement with respect to be present for quorum purposes and to be voted any Extraordinary Transaction that would result in favor the acquisition by any person or group of more than 50% of the election to Voting Securities or assets having an aggregate value exceeding 50% of the Board aggregate enterprise value of those director nominees nominated the Company; (y) one or more definitive agreements providing for election the acquisition by the Board and against Company or its subsidiaries of one or more businesses or assets (excluding, for the removal avoidance of any directors whose removal is not recommended by doubt, acquisitions of equipment or facilities in ordinary course business operations) having an aggregate value exceeding 25% of the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director market capitalization of the Company during the Cooperation Period or (includingz) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the Common Stock (including on an as-converted basis, without limitationand including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, voting on any matter submitted convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for consideration (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Board, participating in deliberations Company or discussions one or more of its subsidiaries shall not be counted toward this clause (z)); and (C) the Board and making suggestions commencement of any tender or raising issues to exchange offer (by any person or group other than the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇▇ Shareholder Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any Affiliates person or Associates thereof shall seek group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to do indirectly through Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 2(c)) will prohibit or restrict any of the Nominees Restricted Persons from (I) making any public or their Replacements anything private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a Third Party that is party to such Extraordinary Transaction, (II) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (III) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (IV) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company or (V) providing its views privately to the Board or the Company’s Chief Executive Officer, Chief Financial Officer, General Counsel, or members of the investor relations team made available for communications involving broad-based groups of investors (including through participation in investor meetings and/or conferences) regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be prohibited if done expected to require public disclosure of such communications or requests by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder the Company or any Affiliate or Associate thereof)of the Restricted Persons.
Appears in 1 contract
Standstill. (a) Each Until the second anniversary of the PW Group Shareholders solely on behalf of itself and its respective Closing Date neither the Sellers nor their Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersshall:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iiia) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, any voting securities or voting rights or direct or indirect rights or options to acquire any voting securities of the Company RCG or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their its Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company)a stock split, unless and until such ownership interest before and after such subsequent increase does not exceed such limitationstock dividend or similar recapitalization;
(ivb) effect make or seek cause to effect be made any proposal for an Extraordinary Transaction;
(includingc) form, without limitationjoin or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the 1934 ▇▇▇) ▇▇th respect to any securities of RCG or its Affiliates;
(d) make, by entering into or in any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, way cause or participate in, any "solicita- tion" of "proxies" to vote (as those terms are defined in Regulation 14A under the 1934 ▇▇▇) ▇▇th respect to RCG or its Affiliates, or become a "participant" in any way assist "election contest" (as those terms are defined or facilitate used in Rule 14a-11 under the 1934 ▇▇▇) ▇▇th respect to RCG or its Affiliates;
(e) initiate, propose or otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to RCG or its Affiliates or induce any Person to initiate any stockholder proposal, or seek election to or seek to place a representative on the Board of Directors of RCG or its Affiliates, other then as expressly contemplated by Section 5.12 hereof.
(f) in any manner, agree, attempt, seek or propose (or make any request for permission with respect thereto) to deposit any securities of RCG or its Affiliates, directly or indirectly, in any voting trust or similar arrangement or to subject any securities of RCG or its Affiliates to any other person to effect voting or seekproxy agreement, offer arrangement or propose to effect understanding;
(g) disclose any intention, plan or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect announcement (or request permission to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by make any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offersuch announcement), or vote by induce any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of other Person to take any securities of action, inconsistent with the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Actforegoing;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixh) enter into any discussions, negotiations, agreements arrangements or understandings with any Third Party third party with respect to any of the foregoing, or ;
(i) advise, assist, knowingly assist or encourage or seek finance (or assist or arrange financing to persuade or for) any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent other Person in connection with any of the foregoing; or;
(xj) publicly requestotherwise act in concert with others, directly to seek to control or indirectlyinfluence the management, any amendment Board of Directors or waiver policies of the foregoing. The foregoing provisions of RCG or its Affiliates; provided, that this Section 2(a) 5.11 shall not be deemed restrict or inhibit the rights of Sellers to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and otherwise exercise its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely voting rights as a director stockholder of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)RCG.
Appears in 1 contract
Standstill. During the Cooperation Period, each ▇▇▇▇▇▇ Party will not, and will cause its Controlling and Controlled Affiliates (aand those under common Control) Each of the PW Group Shareholders solely on behalf of itself and its and their respective Affiliates and Associates, each of the Luxor Shareholders solely Representatives acting on their behalf of itself and its respective Affiliates and Associates and each of (collectively with the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (Parties, the “Covered PeriodRestricted Persons”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to) to not, directly or indirectly in any mannerindirectly, alone without the prior written consent, invitation, or in concert with othersauthorization of the Company or the Board:
(i) make, engage inacquire, or in offer or agree to acquire, by purchase or otherwise, or direct any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used Third Party in the proxy rules acquisition of the SEC but without regard record or beneficial ownership of or economic exposure to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or rights or options to acquire any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” engage in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined swap or used under the Exchange Act) (hedging transaction, or other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent derivative agreement of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) nature with respect to any securities of the Company or otherwise Company, in any manner agreeeach case, attemptif such acquisition, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate agreement or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and transaction would result in the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the othersParties, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) Affiliates, having beneficial ownership, as determined in accordance with Rule 13d-3 ownership of the Exchange Act, over more than 19.99% in the 9.99%, or aggregate of the shares of Common Stock outstanding at such time or (B) economic exposure to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate 9.99%, of the shares of Common Stock outstanding at such time;
(ii) alone or in concert with any one or more Third Parties, (2A) seek election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (B) make or be the proponent of any stockholder proposal to the Company, the Board or any of its committees, (C) seek (including through any “withhold” or similar campaign) the removal of any member of the Board, or (D) conduct, call for or publicly support a referendum of stockholders of the Company;
(iii) make any request for stockholder list materials or other books and records of the Company or any of its Affiliates, whether pursuant to Section 220 of the DGCL or under any statutory or regulatory provision relating to stockholder access to books or records of the Company or any of its Affiliates;
(iv) engage in any “solicitation” (as such term is used in the proxy rules of the SEC, but including, notwithstanding anything to the contrary in Rule 14a-2 under the Exchange Act, solicitations of ten (10) or fewer shareholders that would otherwise be excluded from the definition of “solicitation” pursuant to Rule 14a-2(b)(2) under the Exchange Act) of one or more proxies or consents with respect to the Luxor Shareholders (together with their Affiliates and Associates and election or removal of one or more directors of the Company or any other persons with whom they may be matter or proposal relating to the Company or become a Section 13(d) Group) having beneficial ownership, “participant” (as determined such term is defined in accordance with Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A under the Exchange Act, over more than 13.5% ) in the aggregate any such solicitation of the shares of Common Stock outstanding at such time, proxies or (3) consents with respect to the Company, in each case other than in a manner that is consistent with the Board’s recommendation on a matter or otherwise in connection with a matter for which the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Parties have voting discretion pursuant to Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company4(b), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(ivv) effect make or seek to effect submit any proposal, or offer for (including, with or without limitation, by entering into any discussions, negotiations, agreements one or understandings whether or not legally enforceable with any personmore conditions), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, amalgamation, acquisition, scheme, arrangementsale of all or substantially all assets, business combination, recapitalization, restructuring, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company (including its direct or any of its indirect subsidiaries or and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), either publicly or make any in a manner that would reasonably be expected to result in or require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise dispose of or unwind call option, swap or hedging positions they may have participating in any Extraordinary Transaction on the same basis as of the date hereof relating to securities other stockholders of the Company);
(vi) make any proposal, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to (A) call or seek to call, alone or any change in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term identity of directors of the Company or to fill the filling of any vacancies vacancy on the Board, except other than as set forth hereinprovided under Section 1 of this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in the Company’s management, business management or corporate or governance structure, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Amended and Restated Certificate of Incorporation (as amended) or Bylawsthe Bylaws (collectively, or other actions that may impede or facilitate the acquisition of control of the Company by any person“Organizational Documents”), (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiivii) make advise or knowingly assist or encourage any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal other Person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities, or (B) in conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board), in each case other than such encouragement or advice that is consistent with the Board’s recommendation, in connection with a matter for which the ▇▇▇▇▇▇ Parties have voting discretion pursuant to Section 4(b) or as otherwise expressly permitted by this Agreement;
(viii) form, join or knowingly encourage or participate in or act in concert with any Group with respect to any securities of the Company, its managementor any securities convertible or exchangeable into or exercisable for any such securities, policies other than solely with Affiliates of the ▇▇▇▇▇▇ Parties with respect to securities of the Company now or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreementhereafter owned by them;
(ix) enter into any discussionsvoting trust, negotiations, agreements arrangement or understandings with any Third Party agreement with respect to any securities of the foregoingCompany, or adviseany securities convertible or exchangeable into or exercisable for any such securities, assistor subject any securities of the Company, knowingly encourage or seek to persuade any Third Party to take securities convertible or exchangeable into or exercisable for any action or make any statement with respect such securities, to any of voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the foregoinglike), in each case other than (A) this Agreement, (B) solely between or otherwise take among any two or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each more of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself Parties and its respective Affiliates their Affiliates, (C) granting any proxy in any solicitation approved by the Board and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of consistent with Section 4(b), or (D) granting any proxy in any solicitation in connection with any matter for which the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting▇▇▇▇▇▇ Parties have voting discretion pursuant to, and further agrees in accordance with, Section 4(b);
(x) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange-traded fund, benchmark fund or broad basket of securities) that at includes, relates to, or derives any significant part of its value from a decline in the 2014 Annual Meeting it shall (i) vote in favor market price or value of the 2014 Company Slate; (ii) vote for ratification any of Ernst & Young LLP as the Company’s auditors for securities and would, in the 2014 fiscal yearaggregate, result in the ▇▇▇▇▇▇ Parties ceasing to have a Net Long Position in the Company;
(xi) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, all or substantially all, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xii) enter into any negotiation, agreement, arrangement, or understanding (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 4(d); and or
(iiixiii) vote for “say on pay” resolutions recommended make any request or submit any proposal to amend or waive any of the terms of this Agreement (including this subclause), in each case publicly or that would reasonably be expected to result in a public announcement or disclosure of such request or proposal or give rise to a requirement to so publicly announce or disclose such request or proposal by the Board. At Company or any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each Restricted Persons; provided that the restrictions in this Section 4(d) shall terminate automatically upon the earliest of the Luxor Shareholders and each following:
(A) any material breach of this Agreement by the Company as determined by a court of competent jurisdiction; provided that the Company’s failure to issue the Press Release in accordance with Section 3 will constitute a material breach of this Agreement without requiring a determination by a court of competent jurisdiction, upon five (5) Business Days’ written notice by any of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election Parties to the Board of those director nominees nominated for election by Company if such breach has not been cured within such notice period; provided that the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder Parties are not in material breach of this Agreement at the time such notice is given or any Affiliates or Associates thereof shall seek prior to do indirectly through any the end of the Nominees or their Replacements anything notice period;
(B) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would be prohibited if done result in the acquisition by any Person or Group of more than 50% of the Common Stock of the Company or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company, or (y) a PW Group/Luxor/definitive agreement with respect to a stock-for-stock transaction whereby immediately after the consummation of the transaction the Company’s stockholders retain less than 50% of the equity interests and voting power of the surviving entity’s then-outstanding equity securities; and
(C) the commencement of any tender or exchange offer (by any Person or Group other than the ▇▇▇▇▇▇ Shareholder Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any Person or Group of more than 50% of the Common Stock, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including the restrictions in this Section 4(d) will prohibit or restrict any Restricted Person from (I) stating how it intends to vote with respect to an Extraordinary Transaction, if any, and the reasons therefor, (II) complying with any subpoena or other legal process or responding to a request for information from any governmental authority with jurisdiction over such Restricted Person (so long as such process or request did not arise as a result of any discretionary act by any Restricted Person); provided that such Restricted Person will notify the Company promptly in writing (if reasonably practicable and to the extent not legally prohibited) of the existence, terms, and circumstances surrounding such request or requirement; provided, further, that no Restricted Person shall be required to provide the notice to the Company referenced in the immediately preceding proviso in the case of disclosures required to be made by such Restricted Person in the course of a routine audit or review by a competent regulatory or administrative authority that is not specifically related to the Company or such Restricted Person’s interactions with the Company, (III) granting any lien or encumbrance on any claim or interest in favor of a bank or broker-dealer or prime broker holding such claim or interest in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claim or interest in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (IV) negotiating, evaluating or trading, directly or indirectly, in any index fund, exchange-traded fund, benchmark fund or broad basket of securities that may contain or otherwise reflect the performance of, but does not primarily consist of, securities of the Company, or (V) providing its views privately to any member of the Board or to the Company’s Chief Executive Officer, Chief Financial Officer, or General Counsel or any Affiliate financial or Associate thereof)legal advisors that have been identified by the Chief Executive Officer, Chief Financial Officer or General Counsel to the ▇▇▇▇▇▇ Parties regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be expected to require public disclosure of such communications or requests by the Company or any of the Restricted Persons.
Appears in 1 contract
Standstill. Each Investor Party agrees with the Company, severally and not jointly, that, during the Term and thereafter until the date on which no Investor Director is serving on the Board (and, in the case of Section 5.08(g), for a period of six (6) months following the later of the foregoing), without the prior written approval of the Board, such Investor Party and its controlled Affiliates shall not, directly or indirectly:
(a) Each acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, whether by private or open market purchase, a block trade, 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 Voting Securities or direct or indirect rights to acquire any Voting Securities of the PW Group Shareholders Company, any securities convertible into or exchangeable for any such Voting Securities, any options puts, calls, swaps or other derivative or convertible instruments, hedging contracts or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock (solely on behalf of itself to the extent that, after giving effect to such acquisition, such Investor Party and its respective Affiliates and Associateswould beneficially own, each in the aggregate, greater than 14.9% of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and then outstanding Common Stock);
(b) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance case with Section 5 (the “Covered Period”or without conditions), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, either alone or in concert with others:, any Extraordinary Transaction, or enter into any discussions, negotiations, arrangements, understandings (whether written or oral) with any Person regarding any of the foregoing (it being understood that the foregoing shall not restrict any Investor Parties from tendering shares, receiving payment or shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of the Company);
(c) (i) make, engage in, make or in any way encourage or participate in, directly or indirectly, in any “solicitation” of proxies “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 SEC (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents )), to vote, or knowingly seek to advise, encourage or influence any person Person with respect to the voting of voting, acquisition or disposition of, any securities Voting Securities of the Company or any of its Subsidiaries or any securities convertible or exchangeable into or exercisable for any such securities Voting Securities, (collectivelyii) request, “securities call or seek to call (or, for the avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company”’s stockholders or action by written consent (or the setting of a record date therefor), (iii) initiate or be the proponent of any stockholder proposal for action by the Company’s stockholders, (iv) seek, alone or in concert with others, election of individuals to or to place a representative on the Board or to approve shareholder proposalsnominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 5.10, (v) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any director from the Board (other than, in the case of the Investor Parties, any Investor Directors), or (vi) 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 for the election of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement directors with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that nothing in this clause shall not Agreement will prevent the Investor Parties or their Affiliates from taking actions in furtherance of identifying any replacement for an Investor Director pursuant to Section 5.10, as applicable;
(Ad) preclude the tender except as expressly permitted by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company this Agreement with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous managementInvestor Directors, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to callact, alone or in concert with others, to seek to control or influence, in any meeting manner, the management, board of shareholdersdirectors or business of the Company or any of its Subsidiaries, including by written action, (Bi) seek representation on, controlling or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (Bii) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, Company or (C) any other material change in the Company’s management, business or corporate structure, (Diii) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or BylawsCompany Charter Documents, or other actions that may impede or facilitate the acquisition of control of the Company by any personPerson;
(e) grant any proxy, consent or other authority to vote any Voting Securities with respect to any matters (Eother than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders);
(f) causing agree, attempt, seek or propose to deposit any shares of Common Stock in any voting trust or similar arrangement or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among such Investor Party and its controlled Affiliates and otherwise in accordance with this Agreement;
(g) other than sales into the public market pursuant to a class bona fide, broadly distributed underwritten public offering, in each case made pursuant to the Registration Rights Agreement or through a bona fide sale to the public without registration effectuated pursuant to Rule 144 under the Securities Act where the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of rights decoupled from the underlying securities of the Company held by such Investor Party to become eligible for termination any Third Party that, to the actual knowledge of registration such Investor Party, would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time; provided, that the restriction in this Section 5.08(g) will not apply with respect to any Third Party who makes filings with respect to the Company’s securities to the SEC on Schedule 13G pursuant to Section 12(g)(4Rule 13d-1(b) of under the Exchange Act;
(viiih) make a request for any stockholder list or other Company books and records under Section 220 of the DGCL or otherwise; provided that nothing in this Agreement shall restrict any Investor Director’s rights as a director of the Company under Section 220(d) of the Delaware General Corporation Law;
(i) make any public disclosure, announcement proposal or statement regarding of inquiry or disclose any intent, purposeintention, plan or proposal arrangement inconsistent with respect any of the foregoing;
(j) advise, assist, knowingly encourage or direct any Person to the Boarddo, the Companyor to advise, its managementassist, policies knowingly encourage or affairsdirect any other Person to do, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreementforegoing;
(ixk) enter into any discussionsagreements, negotiations, agreements arrangements or understandings with any Third Party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Party and its Affiliates) with respect to any of the foregoing, including forming, joining or advise, assist, knowingly encourage or seek to persuade in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent in connection with any of the foregoing; or;
(xl) publicly requestrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.08; provided that this clause shall not prohibit any Investor Party from making a confidential request to the Company seeking an amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a5.08, 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
(m) contest the validity of this Section 5.08 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.08. The restrictions in this Section 5.08 shall not be deemed to prohibit terminate automatically upon the earliest occurrence of any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders following: (A) the Company’s entry into a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company and (B) the commencement of any tender or exchange offer (by any Person or group other than the Investor Parties or their directorsAffiliates) which, officersif consummated, partnerswould constitute an Extraordinary Transaction that would result in the acquisition by any person or group (with the exception of the Investor Parties and any of their Affiliates) of more than 50% of the Voting Securities, employeeswhere the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer. Notwithstanding anything to the contrary contained in this Agreement, members nothing the Agreement shall limit the ability of any Investor Director to vote or agents otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board. Furthermore, notwithstanding anything to the contrary in this Section 5.08, nothing in this Section 5.08 shall prohibit or restrict the Investor Parties from: (acting in such capacityA) from communicating privately with the Board, any member of senior management of the Company (including the Company’s directorsChief Executive Officer, officers Chief Financial Officer, and General Counsel) or advisors so long as any director of the Company regarding any matter (it being understood that the Investor Parties shall not engage in any such private communications if the content of such communications would reasonably be expected to require any public disclosure of such communications, without the prior authorization of the Board or Chief Executive Officer); (B) privately communicating to the Investor Parties’ or its Affiliates’ investors or potential investors regarding the Company; provided that any such communications to investors or potential investors (1) are subject to reasonable confidentiality obligations of such investors or potential investors and are not reasonably expected to be publicly disclosed, (2) are not made with an intent to, and do not, circumvent any of the restrictions in this Agreement or otherwise in bad faith and (3) are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
; (bC) Each making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any Governmental Authority with jurisdiction over such Person from whom information is sought, in each case upon the advice of outside legal counsel (provided, that, to the extent permitted by applicable law, the applicable Investor Party will provide the Company with notice of any such requirement prior to making any such statement); (D) voting, transferring or hedging (subject to Section 5.08(g) and Section 5.20); (E) participating in rights offerings made by the Company to all holders of its Common Stock, receiving any dividends or similar distributions with respect to any securities of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCompany held by such Investor Party, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all tendering shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedStock, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of otherwise exercising rights under its Common Stock beneficially ownedthat are not the subject of this Section 5.08; or (F) at any time after eight months following the date hereof, directly or indirectlymaking a proposal relating to an Extraordinary Transaction, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election provided that such proposal is first made privately to the Board or Chief Executive Officer and is conditioned on the approval of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Standstill. Prior to 24 months after the Closing Date (a) Each such period, as it may be earlier terminated by Section 6.2.3(i), the Standstill Period), unless and to the extent the Investor or any of its Affiliates shall have been specifically invited in writing by the PW Group Shareholders solely Issuer (or other body or executive with authority to make such determination on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Issuer), except as expressly including in connection with the procedures set forth in this Section 16.2.1 of the Collaboration and License Agreement, neither it the Investor nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
shall: (i) make, engage ineffect, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effectinitiate, cause or participate inin (A) any acquisition of beneficial ownership of any voting securities of the Issuer other than pursuant to the Transactions, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, (B) any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale restructuring, liquidation or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company Issuer or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into Issuer or (C) any tender “solicitation” of “proxies” (as those terms are used in Regulation 14A of the U.S. Securities Exchange Act of 1934 (the Exchange Act) and the rules promulgated thereunder) or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of shareholder written consents with respect to any securities of the Company with respect to any Extraordinary Transaction Issuer; (ii) form, join or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company participate in a “take privategroup” transaction subject to Rule 13e-3 promulgated under (as defined in the Exchange Act;
(v) 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” transactionAct and the rules promulgated thereunder) with respect to the beneficial ownership of any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the voting securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as Issuer in excess of the date hereof relating to securities of the Companyamounts permitted under subclause (i)(A);
; (viiii) (A) call or seek to callact, alone or in concert with others, to seek to control the management or Board of Directors of the Issuer; (iv) agree or offer to take, or knowingly encourage or propose (publicly or otherwise) the taking of, any meeting of shareholders, including by written actionaction referred to in clause (i), (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchangeii), or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4iii) of the Exchange Act;
this sentence; (viiiv) make any public disclosure, announcement induce or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage any other person or seek to persuade any Third Party entity to take any action or make any statement with respect to any of the foregoingtype referred to in clause (i), (ii), (iii), or otherwise take (iv) of this sentence; or cause any action or make any statement inconsistent with any of the foregoing; or
(xvi) publicly requestrequest or propose that the Issuer amends, directly waives or indirectly, any considers the amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing provision set forth in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)standstill provision.
Appears in 1 contract
Sources: Investment Agreement (Argenx Se)
Standstill. (a) Each Following the Effective Time and for so long as one or more nominees of Century is a director of BFP, no member of the PW Restricted Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it they will cause each of its Affiliates and Associates not assist or encourage others (including by providing financing) to, directly or indirectly in any manner, alone or in concert with others:
(i) makeacquire or agree, offer, seek or propose (whether publicly or otherwise) to acquire ownership (including but not limited to beneficial ownership) of any substantial portion of the assets or Equity Securities of BFP (other than in a transaction permitted under Section 3.01), whether by means of a negotiated purchase of assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other extraordinary transaction ("Business Combination"), (ii) engage in, or in any way participate in, directly or indirectly, any “"solicitation” " of proxies "proxies" (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 promulgated under the Exchange Act, but disregarding clause (iv) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at Rule 14a-1(1)(2) and including any shareholder meeting) or make or be the proponent of any shareholder proposal (exempt solicitation pursuant to Rule 14a-8 under the Exchange Act 14a-2(b)(1) or otherwise(2);
(ii) ), or form, join, encourage, influence, advise join or in any way participate in any “a "group” " (as such term is defined in Section 13(d)(3) of under the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereofAct) with respect to any securities Equity Securities, (iii) subject to the obligation of Century's designees on the Company or Board of Directors to exercise their fiduciary duties as directors, otherwise in any manner agree, attempt, seek or propose to deposit any securities acquire control of the Company in any voting trust or similar arrangement, or subject any securities Board of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such timeDirectors, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or that could reasonably be expected to force BFP to make a public announcement regarding any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals types of matters referred to change the number or term of directors or to fill any vacancies on the Board, except as set forth hereinin clause (i), (Bii) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (Ciii) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchangeabove, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixv) enter into any discussions, negotiations, agreements agreements, arrangements or understandings with any Third Party third party with respect to any of the foregoing, . No member of the Restricted Group will request BFP or advise, assist, knowingly encourage any of its Representatives to amend or seek to persuade waive any Third Party to take provision of this paragraph (including this sentence) during such period. If at any action or make time during such period a member of the Restricted Group is approached by any statement with respect to third party concerning its participation in any of the foregoingtypes of matters referred to in clause (i), (ii) or otherwise take or cause any action or make any statement inconsistent with any (iii) above, such member will promptly inform BFP of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure nature of such communicationscontact and the parties thereto.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it Nothing in this Section 3.02 shall (i) vote in favor prohibit or restrict Century from responding to any inquiries from any shareholders of BFP as to Century's intention with respect to the 2014 Company Slatevoting of any Voting Securities beneficially owned by Century as long as such response is consistent with the terms of this Agreement; or (ii) vote for ratification restrict the right of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say each Century director on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of or any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting committee thereof to vote on any matter submitted for consideration by the Board, participating as such individual believes appropriate in deliberations light of his or discussions of the Board and making suggestions or raising issues to the Board) consistent with his her fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)committee member.
Appears in 1 contract
Sources: Stockholder Agreement (Century Telephone Enterprises Inc)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 Standstill Period (the “Covered Period”as defined below), except as expressly set forth (unless specifically requested in this Agreementwriting by the Company, neither acting through a resolution of a majority of the Company’s directors not including the July 22nd Directors or the Additional Director), it nor any shall not, and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Exchange Act of 1934 (the “Exchange Act”) provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) (collectively (with ▇▇▇▇) and individually, and it will cause each of its Affiliates and Associates the “▇▇▇▇ Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) i. make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv14a1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to advise, encourage or influence any person other than any ▇▇▇▇ Affiliate with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder meeting) stockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(, except in all cases as expressly permitted by this Agreement; ii) . form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other thanexcluding, with respect to PW Group/Luxor/▇▇for the avoidance of doubt, any group composed solely of ▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof▇▇▇▇ Affiliates) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereofthereof (including by granting any proxy, consent or other authority to vote), except as expressly set forth in this Agreement;
(iii) . acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group)group, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in ▇▇▇▇ (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and together with the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(dAffiliates) Group with owning, controlling or otherwise having any of the others, would result beneficial or other ownership interest in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over 4% or more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthat ▇▇▇▇ and the ▇▇▇▇ Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely clause (iii) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
iv. other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by ▇▇▇▇ or any ▇▇▇▇ Affiliate to any person or entity not a party to this Agreement (a “Third Party”) that, to JANA’s or the ▇▇▇▇ Affiliate’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock so long as outstanding at such time or would increase the beneficial or other ownership interest of such personsany Third Party who, collectively together with their Affiliates its affiliates and Associatesassociates, do not increase thereafter (except solely as has a result of further corporate actions taken by the Company), unless and until such beneficial or other ownership interest before and after in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such subsequent increase does not exceed such limitationtime;
(iv) v. effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, schemesale of all or substantially all assets, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition plan of material assets, liquidation, dissolution arrangement or other extraordinary transaction business combination involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”), or make encourage, initiate or support any public statement with respect to an Extraordinary Transactionother third party in any such activity; provided, however, that this clause (v) shall not (A) preclude the tender (or action not to tender) by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an a ▇▇▇▇ Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote for or against any transaction by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an a ▇▇▇▇ Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(v) vi. 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, including any put or call option or “swap” transaction) transaction with respect to any security (other than a broad-broad based market basket or index)) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, request the calling of any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, (F) present at any annual meeting or any special meeting of the Company’s stockholders, or (FG) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(vii) viii. except as set forth herein, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, ; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles certificate of Incorporation incorporation or Bylawsthe by-laws, or other actions actions, that may impede or facilitate the acquisition of control of the Company by any person, ; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) ix. make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or slanders the Company or Affiliates thereof or any of their respective current or former officers, directors or employees, provided that ▇▇▇▇ will, subject to the Confidentiality Agreement if executed, be permitted to make objective statements that reflect JANA’s view, as a shareholder, with respect to factual matters concerning specific acts or determinations of the Company occurring after the date of this Agreement;
x. make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) ; xi. enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).;
Appears in 1 contract
Standstill. (a) Each of During the PW Group Shareholders solely period commencing on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 and continuing until December 31, 2025 (the “Covered PeriodStandstill Termination Date”), except as expressly set forth unless such action shall have been specifically invited in this Agreementwriting by the Board, neither it Investor nor any of its Affiliates or Associates willPEAK6 Party shall, and it will Investor and each PEAK6 Party shall cause each other member of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersthe Investor Group to not:
(i) make, engage inmake any proposal or offer to the Board or any of the Company’s stockholders regarding, or in make any way participate inpublic announcement, directly proposal or indirectly, offer (including any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participantproxies” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (other than a “solicitation” i) any business combination, merger, tender offer, exchange offer or acting as a “participant” 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; provided, however, that nothing in support of all this Section 3.2(a) shall prohibit such member of the nominees Investor Group 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 Board at filing of a Schedule 13D or Schedule 13G or any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseamendment thereof);
(ii) form, join, encourage, influence, advise join or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) Group with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) Person with respect to any securities Common Stock other than forming, joining or in any way participating in a Group solely between or among (i) such member of the Company Investor Group and its Affiliates or otherwise in any manner agree, attempt, seek or propose to deposit any securities (ii) such member of the Company Investor Group and its Affiliates and any other Permitted Transferee with respect any shares of Common Stock Transferred to any such Permitted Transferee not in any voting trust or similar arrangement, or subject any securities violation of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in terms of this Agreement;
(iii) acquireenter, offer or propose to acquire, or agree to acquireenter, directly propose or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) offer to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering enter into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganizationrestructuring, sale or acquisition of material assets, liquidation, dissolution 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 Board);
(iv) otherwise act with any Person, including by providing financing for another party, to seek to control or joint ventures influence the management, the Board or the policies of the Company;
(v) acquire, agree or propose or offer to acquire (including through any hedging or 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 their respective any stock split or stock dividend of voting securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transactionof the Company; provided, however, that this clause these restrictions shall not apply to any acquisition of, or agreement or proposal to acquire, the Contingent Shares;
(Avi) preclude call, or seek to call, a meeting of the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities stockholders of the Company into or initiate any tender stockholder proposal for action by stockholders of the Company;
(vii) publicly disclose any intention, plan or exchange offerarrangement prohibited by, or vote 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 PW Group/Luxor/▇▇▇▇▇▇ Shareholders Common Stock into a voting trust or an Affiliate similar contract or Associate thereof of subject any securities of the Company Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Extraordinary Transaction 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) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets solely among such member of the Investor Group 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
(ix) knowingly facilitate, encourage or assist any third party to do any of the foregoing.
(b) Neither Investor nor any PEAK6 Party shall, and each PEAK6 Party shall cause each other members of the Investor Group to not, without the prior written consent of the Company, publicly request the Company if to amend or waive any provision of this Section 3.2 (including this sentence) or do so in any other manner that would require the Company or any other Person to publicly disclose (including the filing of a Schedule 13D or Schedule 13G or any amendment thereof) such request.
(c) Notwithstanding the foregoing, the parties agree and acknowledge that (i) each member of the Investor Group 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 3.2 shall in no way limit any communication between or among Investor, the PEAK6 Parties and their respective Affiliates or any Permitted Transferee with respect to any shares of Common Stock Transferred to any such Permitted Transferee, and (iii) each member of the Investor Group and its Affiliates may coordinate any such vote with, act in concert with, and be part of a Group with, any other Affiliate of such member of the Investor Group or any Permitted Transferee with respect to any shares of Common Stock Transferred to any such Permitted Transferee.
(d) Notwithstanding anything in this Agreement to the contrary, this Section 3.2 shall terminate and be of no further force and effect if: (i) the Company enters into a definitive agreement relating to a transaction involving the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member more than 50% of the Company’s current equity securities by Persons other than Intercontinental Exchange, Inc. or previous management, any director or former director, or any of their its Affiliates or Associates has publicly offered to acquire the sale of all or substantially all of the Company’s assets to an unrelated third party (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation rightissuance, or other similar right otherwise), or (includingii) any person, without limitation, any put entity or call option group publicly announces or “swap” transaction) with respect commences a tender or exchange offer to any security (other acquire more than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities 50% of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communicationscapital stock.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from From the date hereof until the termination of this Agreement in accordance with Section 5 until 11:59 p.m., Pacific time, on the day of the Company’s 2020 Annual Meeting of Stockholders (such period, the “Covered Restricted Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willthe Nokomis Group will not, and it the Nokomis Group will cause each of the Investors and its Affiliates and Associates their respective Affiliates, Associates, principals, directors, general partners, officers, employees, agents and representatives acting on its respective behalf not to, in any way, directly or indirectly (in any mannereach case, alone or in concert with others:except as expressly permitted by this Agreement):
(a) (i) make, engage in, participate in or in any way participate in, directly or indirectly, encourage any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard Securities and Exchange Commission (the “SEC”)) of proxies with respect to the exclusion set forth election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in Rule 14a-1(l)(2)(iv) the proxy rules of the Exchange ActSEC) in any such solicitation of proxies or consents to vote, consents; or (iii) seek to advise, encourage or influence any person Person with respect to the voting of any securities Voting Securities; provided, however, that except as set forth in paragraph 4, nothing herein shall be interpreted to restrict the Investors’ ability to vote their shares on any proposal duly brought before the Company’s stockholders as each member of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” Investors determines 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)its sole discretion;
(iib) forminitiate, join, encourage, influence, advise propose or in any way participate in any otherwise “groupsolicit” (as such term is defined used in Section 13(d)(3) the proxy rules of the SEC), directly or indirectly, the Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Securities Exchange Act for purposes of this Agreement1934, as amended (the “Exchange Act”), or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any such groupcandidate to the Board; (ii) seek, alone or in concert with others, the removal of any member of the Board; or (iii) make a “Section 13(d) Group”) with request for any persons (stockholder list or other thansimilar Company records; provided, with respect to PW Group/Luxor/however, that nothing herein shall prohibit M▇. ▇▇▇▇▇▇▇ Shareholders, from making such a Section 13(d) Group that includes all or some of the persons identified on the Group 13D request in his capacity as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementa director;
(iiid) acquire, offer (i) form or propose to acquire, join (whether or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining not in writing) in a partnership, limited partnership, syndicate or other group (including any group, including, without limitation, a “group” as defined pursuant to Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction Voting Securities (other than any group comprised solely of Investors); (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (Biii) prohibit subject any PW Group/Luxor/▇▇▇▇▇▇ Shareholders Voting Securities to any voting trust, arrangement or Affiliate or Associate thereof from offering to purchase assets agreement, in each case other than solely with other Affiliates of the Company if the sale of such assets is initiated Nokomis Group with respect to Voting Securities now or hereafter owned by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Actthem;
(ve) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to callact, alone or in concert with others, any meeting of shareholders, including by written action, to (Bi) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act control or seek to act by written actioncontrol, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list influence or other Company books and recordsseek to influence, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advisingmanagement, controlling, changing or influencing the Board or management the policies of the CompanyCompany (including, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Boardwithout limitation, except as set forth herein, (B) any material change in to the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) Company or any other material change in the Company’s management, business or corporate structure); provided, however, that nothing herein shall limit the Investors’ ability to communicate their views with respect to the aforementioned privately to the Board and management of the Company; or (ii) seek, propose or make any public statement with respect to any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transaction involving the Company or its subsidiaries;
(f) with respect to the Company or the Voting Securities, (Di) seeking to have the Company waive or make amendments or modifications to communicate with the Company’s Articles stockholders or others pursuant to Rule 14a-1(l)(2)(iv) pursuant to the Exchange Act in a manner inconsistent with the provisions of Incorporation or Bylawsthis paragraph 6; (ii) participate in, or other actions that may impede or facilitate the acquisition of control of the Company by take any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted onaction pursuant to, any securities exchange, “proxy access” proposal adopted by the SEC; or (Fiii) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Actconduct any nonbinding referendum or “stockholder forum”;
(viiig) publicly make or disclose any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, Board or the Company, its management, policies policies, affairs or affairsassets, any of its securities or assets the Voting Securities or this Agreement Agreement, that is inconsistent with the provisions of this Agreement, including, without limitation, any intent, purpose, plan or proposal that is conditioned on, or would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ixh) other than with other Affiliates of the Investor, enter into any discussionsagreements, negotiationsunderstandings or arrangements (whether written or oral), agreements or understandings with any Third Party with respect to any of the foregoingwith, or advise, assistfinance, knowingly encourage assist or seek to persuade encourage, any Third Party to take any action or make any statement with respect to any of the foregoingPerson, or otherwise take or cause any action or make any statement inconsistent in connection with any of the foregoing; or;
(xi) publicly requestsell, offer or agree to sell all or substantially all, directly or indirectly, through swap or hedging transactions, derivative agreements or otherwise, voting rights decoupled from the underlying Voting Securities held by the Investors to any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.third party; and
(bj) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote make or in favor of any way participate as an offerer (as such term is defined in Schedule TO under the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedExchange Act), directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or their Replacements acting solely as a director of other extraordinary transaction involving the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions its securities or raising issues to the Board) consistent with his fiduciary duties as a director of the Company assets (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder the foregoing will not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any Affiliates such transaction on the same basis as other stockholders of the Company, or Associates thereof shall seek from participating in any such transaction that has been approved by the Board); or (ii) make, or support any third party in making, any public proposal, either alone or in concert with others, to do indirectly through the Company or the Board that would reasonably be expected to require the Company to make a public announcement regarding any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereoftypes of matters set forth above in this paragraph 6(j).
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Global agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, acting alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” (as defined in Rule 14a-l of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to voteinduce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of the Common Stock (including any securities withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of stockholders) or grant a proxy with respect to the voting of the Company Common Stock or other voting securities to any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals person other than to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for persons appointed as proxies by 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(ii) form, join, encourage, influence, advise join or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(dAct) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, the Common Stock (other than a Section 13(d) Group “group” that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and AssociatesExhibit A, but does not including include any other entities or persons not identified on the Group 13D Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of ▇▇▇▇▇▇▇ Global to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iii) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company Common Stock in any voting trust or similar arrangement, or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of ▇▇▇▇▇▇▇ Global and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with others, representation on the Board, except as expressly set forth specifically contemplated in this Agreement;
(iiivii) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders (other than such encouragement, support or influence that is consistent with Company’s management or the Board’s recommendation in connection with such matter);
(x) other than through action at the Board by the New Director acting in his capacity as a director of the Company, seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(xi) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (any of the transactions or events described in this subsection (x), a “Transaction”) ;
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, beneficial ownership of any securities Common Stock of the Company or any rights decoupled from representing in the underlying securities of the Company that aggregate (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the among ▇▇▇▇▇▇▇ Shareholders remain members Global and its Affiliates and Associates) in excess of a Section 13(d) Group with any 12% of the othersCompany’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, would result in stock dividend, stock repurchase or similar corporate action initiated by the PW Group/Luxor/Company with respect to any Common Stock beneficially owned by ▇▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of Global on the date hereof relating to securities of the Companythis Agreement);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiixiii) make any public disclosure, announcement request or statement regarding submit any intent, purpose, plan or proposal with respect to amend the Board, the Company, its management, policies or affairs, any terms of its securities or assets or this Agreement that is inconsistent other than through non-public communications with the provisions of this Agreement;Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(ixxiv) enter into any discussionsagreement, negotiations, agreements arrangement or understandings understanding with any Third Party with respect to a third party concerning any of the foregoing, foregoing (other than this Agreement) or advise, assist, knowingly encourage or seek solicit any person to persuade any Third Party to take any action or make any statement with respect to undertake any of the foregoingforegoing activities; provided, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly requestthat, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of notwithstanding anything in this Section 2(a) 3(a), it is understood and agreed that this Agreement shall not be deemed to prohibit any of (x) the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) New Director from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or engaging in any way limit any actions that may be taken by the Nominees or their Replacements acting solely lawful act in his capacity as a director of the Company (including, without limitation, voting on any matter submitted for consideration that is either expressly approved by the Board, participating Board or required in deliberations or discussions of the Board and making suggestions or raising issues order to the Board) consistent comply with his fiduciary duties as a director of the Company or (it being understood y) solely with respect to any Transaction that has been approved by a majority of the Board and agreed that no PW Group/Luxor/has been announced by the Company, ▇▇▇▇▇▇▇ Shareholder Global from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any Affiliates shares or Associates thereof proxies consistent with the Board’s recommendation in connection with such matter.
(b) As used in this Agreement:
(i) the terms “Affiliate” and “Associate” shall seek to do indirectly through have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include (A) any person that is a publicly held corporation or organization and is an Affiliate or Associate solely by reason of the Nominees fact that a principal or their Replacements anything that would be prohibited if done by a PW Group/Luxor/representative of ▇▇▇▇▇▇▇ Shareholder Global serves as a member of the board of directors or similar governing body of such corporation or organization, (B) any principal or representative of ▇▇▇▇▇▇▇ Global solely in its capacity as a member of the board of directors or similar governing body of a publicly held corporation or organization, or (C) any corporation or organization that is an Associate of a person solely because such person, directly or indirectly, is the beneficial owner of 10% or more of any class of equity securities of such corporation or organization and is not an Affiliate or Associate thereof).of such person;
Appears in 1 contract
Sources: Shareholder Agreement (Tenzing Global Management, LLC)
Standstill. During the Cooperation Period, each Irenic Party will not, and will cause its Controlling and Controlled Affiliates (aand those under common Control) Each of the PW Group Shareholders solely on behalf of itself and its and their respective Affiliates and AssociatesRepresentatives acting on their behalf (collectively with the Irenic Parties, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered PeriodRestricted Persons”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to) to not, directly or indirectly in any mannerindirectly, alone without the prior written consent, invitation, or in concert with othersauthorization of the Company or the Board:
(i) make, engage inacquire, or in offer or agree to acquire, by purchase or otherwise, or direct any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used Third Party in the proxy rules acquisition of the SEC but without regard record or beneficial ownership of or economic exposure to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or rights or options to acquire any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” engage in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined swap or used under the Exchange Act) (hedging transaction, or other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent derivative agreement of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) nature with respect to any securities of the Company or otherwise Company, in any manner agreeeach case, attemptif such acquisition, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate agreement or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, transaction would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (Irenic Parties, together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) Affiliates, having beneficial ownership, as determined in accordance with Rule 13d-3 ownership of the Exchange Act, over more than 19.99% in the 9.99%, or aggregate of the shares of Common Stock outstanding at such time or (B) economic exposure to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate 9.99%, of the shares of Common Stock outstanding at such time;
(ii) alone or in concert with any one or more Third Parties, (2A) with respect call or seek to call (either publicly or privately) a meeting of the Company’s stockholders or act by written consent in lieu of a meeting (or call or seek to call for the setting of a record date therefor), (B) seek election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Luxor Shareholders Board, except as expressly set forth in Section 1, (together with their Affiliates and Associates and C) make or be the proponent of any other persons with whom they may be a Section 13(dstockholder proposal to the Company, the Board or any of its committees, (D) Groupseek (including through any “withhold” or similar campaign) having beneficial ownership, as determined in accordance with Rule 13d-3 the removal of any member of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such timeBoard, or (3E) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be conduct, call for or publicly support a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 referendum of stockholders of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such timeCompany; provided that nothing herein in this Agreement will require Common Stock to be sold to prevent the extent such persons, collectively with Irenic Parties or their Affiliates and Associates, exceed from taking actions in furtherance of privately identifying any Replacement New Director in accordance with Section 1(f) following the ownership limit applicable to such persons under this paragraph solely as the result departure of a share repurchase New Director or similar in anticipation of the potential imminent departure of a New Director (it being understood that prior to taking such action, the Irenic Parties will first notify the Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companypotential imminent departure), unless as applicable;
(iii) make any request for stockholder list materials or other books and until such ownership interest before and after such subsequent increase does not exceed such limitationrecords of the Company or any of its Affiliates, whether pursuant to Section 220 of the DGCL or under any statutory or regulatory provision relating to stockholder access to books or records of the Company or any of its Affiliates;
(iv) effect or seek to effect engage in any “solicitation” (as such term is used in the proxy rules of the SEC, but including, notwithstanding anything to the contrary in Rule 14a-2 under the Exchange Act, solicitations of ten (10) or fewer shareholders that would otherwise be excluded from the definition of “solicitation” pursuant to Rule 14a-2(b)(2) under the Exchange Act) of one or more proxies or consents with respect to the election or removal of one or more directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in any such solicitation of proxies or consents;
(v) make or submit any proposal, or offer for (with or without limitation, by entering into any discussions, negotiations, agreements one or understandings whether or not legally enforceable with any personmore conditions), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, amalgamation, acquisition, scheme, arrangementsale of all or substantially all assets, business combination, recapitalization, restructuring, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company (including its direct or any of its indirect subsidiaries or and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), either publicly or make any in a manner that would reasonably be expected to result in or require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise dispose of or unwind call option, swap or hedging positions they may have participating in any Extraordinary Transaction on the same basis as of the date hereof relating to securities other stockholders of the Company);
(vi) make any proposal, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to (A) call or seek to call, alone or any change in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term identity of directors of the Company or to fill the filling of any vacancies vacancy on the Board, except other than as set forth hereinprovided under Section 1 of this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in the Company’s management, business management or corporate or governance structure, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Restated Certificate of Incorporation or Bylawsthe Bylaws (collectively, or other actions that may impede or facilitate the acquisition of control of the Company by any person“Organizational Documents”), (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiivii) make knowingly encourage or advise any public disclosure, announcement Third Party or statement regarding knowingly assist any intent, purpose, plan Third Party in encouraging or proposal advising any other Person (A) with respect to the Boardgiving or withholding of any proxy or consent relating to, or other authority to vote, any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities, or (B) in conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board), its managementother than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, policies or affairsas otherwise expressly permitted by this Agreement;
(viii) form, join, knowingly encourage or knowingly participate in or act in concert with any Group with respect to any of its securities of the Company, or assets any securities convertible or this Agreement that is inconsistent exchangeable into or exercisable for any such securities, other than solely with Affiliates of the provisions Irenic Parties with respect to securities of this Agreementthe Company now or hereafter owned by them;
(ix) enter into any discussionsvoting trust, negotiations, agreements arrangement or understandings with any Third Party agreement with respect to any securities of the foregoingCompany, or adviseany securities convertible or exchangeable into or exercisable for any such securities, assistor subject any securities of the Company, knowingly encourage or seek any securities convertible or exchangeable into or exercisable for any such securities, to persuade any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely between or among any two or more of the Irenic Parties and their Affiliates, or (C) granting any proxy in any solicitation approved by the Board and consistent with Section 2(b) above;
(x) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange-traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of any of the Company’s securities and would, in the aggregate, result in the Irenic Parties ceasing to have a Net Long Position in the Company;
(xi) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, all or substantially all, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xii) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company, any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions in the name of the Company); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Irenic Party from (A) bringing litigation against the Company to enforce any express provision of this Agreement instituted in accordance with and subject to Section 11, (B) making any counterclaim with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against any Irenic Party, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights, or (E) responding to or complying with validly issued legal process;
(xiii) enter into any negotiation, agreement, arrangement, or understanding (whether written or oral) with any Third Party to take any action or make any statement with respect that the Restricted Persons are prohibited from taking pursuant to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis Section 2(c); or
(xxiv) publicly request, directly make any request or indirectly, submit any amendment proposal to amend or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit waive any of the PW Group/Luxor/terms of this Agreement (including this subclause), in each case publicly or that would reasonably be expected to result in a public announcement or disclosure of such request or proposal or give rise to a requirement to so publicly announce or disclose such request or proposal by the Company or any of the Restricted Persons; provided that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of the following: (A) any material breach of this Agreement by the Company (including any failure (I) to appoint the Investor Designee to the Board in accordance with Section 1(a), (II) to include the Investor Designee (and the New Independent Director, if the New Independent Director is appointed to the Board prior to the 2024 Annual Meeting) in the slate of nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to the 2024 Annual Meeting in accordance with Section 1(d), or (III) to issue the Press Release in accordance with Section 3), as determined by a court of competent jurisdiction; provided that the Company’s failure to take any of the actions identified in the foregoing (I) – (III) will constitute a material breach of this Agreement without requiring a determination by a court of competent jurisdiction, upon five (5) Business Days’ written notice by any of the Irenic Parties to the Company if such breach has not been cured within such notice period; provided that the Irenic Parties are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (B) any material breach of the Consulting Agreement by the Company, as determined by a court of competent jurisdiction, upon five (5) Business Days’ written notice by any of the Irenic Parties or ▇▇. ▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in to the Company if such capacity) from communicating privately with the Company’s directors, officers or advisors so long as breach has not been cured within such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the notice period; provided that ▇▇. ▇▇▇▇▇▇ Shareholders solely on behalf is not in material breach of itself the Consulting Agreement and its respective Affiliates and Associates hereby severally and the Irenic Parties are not jointly agrees in material breach of this Agreement at the time such notice is given or prior to cause all shares the end of the notice period; (C) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any Person or Group of more than 50% of the Common Stock beneficially owned by it as or assets having an aggregate value exceeding 50% of the record date aggregate enterprise value of the Company, (y) one or more definitive agreements providing for the 2014 Annual Meeting acquisition by the Company or its subsidiaries of one or more businesses or assets having an aggregate value exceeding 25% of the aggregate enterprise value of the Company during the Cooperation Period, or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 20% of the Common Stock (including on an as-converted basis, and including other securities of the Company with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another Person by the Company or one or more of its subsidiaries shall not be counted toward this clause (z)); and (D) the commencement of any tender or exchange offer (by any Person or Group other than the Irenic Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any Person or Group of more than 50% of the Common Stock, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated by the SEC under the Exchange Act in response to the commencement of any tender or exchange offer); provided that, in the event the restrictions in this Section 2(c) terminate pursuant to the foregoing clauses (C) or (D) of this Section 2(c) and any of the Irenic Parties determine to solicit proxies against any transactions contemplated by (C) and (D), the Investor Designee shall deliver his or her written resignation to the Board for his or her immediate resignation prior to the commencement of any soliciting activities by the Irenic Parties. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including the restrictions in this Section 2(c)) will prohibit or restrict any Restricted Person from (I) stating how it intends to vote with respect to an Extraordinary Transaction, if any, and the reasons therefor, (II) complying with any subpoena or other legal process or responding to a request for information from any governmental authority with jurisdiction over such Restricted Person (so long as such process or request did not arise as a result of any discretionary act by any Restricted Person); provided that such Restricted Person will notify the Company promptly in writing (if reasonably practicable and to the extent not legally prohibited) of the existence, terms, and circumstances surrounding such request or requirement; provided, further, that no Restricted Person shall be required to provide the notice to the Company referenced in the immediately preceding proviso in the case of disclosures required to be present for quorum purposes and made by such Restricted Person in the course of a routine audit or review by a competent regulatory or administrative authority which is not specifically related to be votedthe Company or such Restricted Person’s interactions with the Company, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (iIII) vote granting any lien or encumbrance on any claim or interest in favor of a bank or broker-dealer or prime broker holding such claim or interest in custody or prime brokerage in the 2014 Company Slate; (ii) vote for ratification ordinary course of Ernst & Young LLP as business, which lien or encumbrance is released upon the Company’s auditors for transfer of such claim or interest in accordance with the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each terms of the PW Group Shareholderscustody or prime brokerage agreement(s), each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedas applicable, (IV) negotiating, evaluating or trading, directly or indirectly, by it as in any index fund, exchange-traded fund, benchmark fund or broad basket of securities that may contain or otherwise reflect the performance of, but does not primarily consist of, securities of the applicable record date Company, or (V) providing its views privately to be present for quorum purposes and to be voted in favor any member of the election Board or to the Board of those director nominees nominated for election Company’s Chief Executive Officer, Chief Financial Officer, or General Counsel or any financial or legal advisors that have been identified by the Board and against Chief Executive Officer to the removal Irenic Parties regarding any matter, or privately requesting a waiver of any directors whose removal is provision of this Agreement, as long as such private communications or requests would not recommended reasonably be expected to require public disclosure of such communications or requests by the Board.
(c) Nothing Company or any of the Restricted Persons. Furthermore, nothing in this Section 2 Agreement shall prohibit or in any way limit any actions that may be taken by restrict the Nominees Investor Designee from exercising his or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board her rights and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).th
Appears in 1 contract
Standstill. (a) Each From and after the Closing until the fourth (4th) anniversary of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 Closing Date (the “Covered Initial Standstill Period”), except as expressly set forth in this Agreementunless otherwise approved, neither it nor any of its Affiliates or Associates willan exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and it will shall cause each of its Affiliates and Associates not to, directly or indirectly in any mannerindirectly, alone or in concert with others:any other Person, except as otherwise expressly set forth in this Section 4.1(a):
(i) makeoffer to acquire or agree to acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing, engage inexcept (A) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations, (B) acquisitions of Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), or (C) acquisitions or purchases of Company Shares pursuant to and in accordance with Article VI;
(ii) acquire, offer to acquire or agree to acquire any assets of the Company or any of its Subsidiaries that are material to the operations, financial condition or prospects of the Company and its Subsidiaries, taken as a whole;
(iii) induce or attempt to induce any third party (it being understood that a “third party” shall exclude Affiliates of Theta, which shall be subject to the restrictions under clause (i) above) to propose or offer to acquire Beneficial Ownership of Company Shares (other than the Company Shares held by the Shareholder Group as and to the extent permitted in accordance with Section 4.2);
(iv) seek the election, appointment or removal of any Directors or seek a change in the composition or size of the Board (in each case, other than through the appointment or removal of any Shareholder Designee);
(v) except (A) as otherwise required by applicable Law or (B) in case of a proposed Directed Issue, make or cause to be made any press release or similar public announcement or public communication relating to the way it intends to, or does, vote its Company Shares at any meeting of the shareholders of the Company or in connection with any action by written consent at or in which Company Shares are entitled to vote;
(vi) deposit any Company Shares into a voting trust or subject any Company Shares to any proxy, arrangement or agreement with respect to the voting of such any Company Shares or other agreement having a similar effect (provided that nothing in this clause (vi) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion, or (B) restricting the rights of Theta under Section 4.2);
(vii) other than as permitted under the foregoing clause (v), initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or in any way participate in, directly or indirectly, any “solicitation” solicitation of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person Person with respect to the voting of, any Voting Securities (provided that nothing in this clause (vii) shall be interpreted as preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion);
(viii) publicly call or publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders (other than pursuant to Section 4.2(e));
(ix) make any securities public statement or disclosure inconsistent with the foregoing;
(x) assist, advise, induce or attempt to induce (or provide any confidential information of the Company or any securities convertible of its Subsidiaries for the purpose of assisting, advising, inducing or exchangeable into attempting to induce) any third party to take, or exercisable for take any such securities (collectivelyaffirmative action to do, “securities any of the Company”foregoing; or
(xi) for propose or seek an amendment or waiver of any of the election provisions of individuals this Section 4.1(a).
(b) From and after the Initial Standstill Period to the Board or date that the Shareholder Group ceases to approve shareholder proposalsBeneficially Own any Company Class B Shares (the “Subsequent Standstill Period”), unless otherwise approved, or become an exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as otherwise expressly set forth in this Section 4.1(b):
(i) seek the election, appointment or removal of any Directors or seek a “participant” change in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined composition or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of the nominees size of the Board at any shareholder meeting) (in each case, other than through the appointment or make or be the proponent removal of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseShareholder Designee);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any Shares into a voting trust or similar arrangement, or subject any securities of the Company Shares to any proxy, arrangement or agreement with respect to the voting thereof, except as expressly set forth of such any Company Shares or other agreement having a similar effect with respect to any matter on which the Company Class B Shares are not entitled to vote pursuant to Section 10 of the Articles of Association (provided that nothing in this Agreementclause (iii) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion or (B) restricting the rights of Theta under Section 4.2);
(iii) acquireinitiate, offer propose or propose to acquireotherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or agree to acquirein any way participate in, directly or indirectly, whether by purchaseany solicitation of proxies to vote, tender or exchange offer, through seek to influence any Person with respect to the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwisevoting of, any securities of the Company or any rights decoupled from the underlying securities of the Company that Voting Securities with respect to (A) any matter on which the Company Class B Shares are not entitled to the extent any vote pursuant to Section 10 of the PW Group ShareholdersArticles of Association, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) any proposal by Theta or its Affiliates to the extent none effect a Company Change of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in Control (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to in this clause (iv) shall be sold to the extent such personsinterpreted as preventing Theta and its Affiliates from voting its Company Shares, collectively with their Affiliates and Associateswhether in person or by proxy, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companyit determines in its sole discretion), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect publicly call or seek publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders with respect to effect (including, without limitation, by entering into A) any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving matter on which the Company or any Class B Shares are not entitled to vote pursuant to Section 10 of its subsidiaries or joint ventures or any the Articles of their respective securities Association (each, an “Extraordinary Transaction”other than pursuant to Section 4.2(e)), or (B) any proposal by Theta or its Affiliates to effect a Company Change of Control; or
(v) make any public statement or disclosure inconsistent with respect the foregoing. Notwithstanding anything to the contrary in the foregoing, during the Subsequent Standstill Period the Shareholder Group shall be permitted to offer to acquire, agree to acquire or acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing in the following circumstances (A) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations, (B) acquisitions of Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), (C) acquisitions or purchases of Company Shares pursuant to and in accordance with Article VI and (D) in connection with an Extraordinary Transactionoffer to acquire all of the outstanding Capital Stock of the Company, including the taking of any preparatory measures in connection with such offer, including obtaining undertakings from the Company’s shareholders to sell their shares in connection with such offer (such offer together with any preparatory measures, a “Shareholder Group Tender Offer”); provided, that Theta and its Affiliates shall have consulted with the Unaffiliated Directors at least twenty (20) Business Days prior to making such Shareholder Group Tender Offer. Upon the making of a Shareholder Group Tender Offer, the restrictions set forth in Section 4.1(b) shall be suspended until such time that the Shareholder Group Tender Offer is either withdrawn or completed. In the event that (i) a majority of Unaffiliated Directors recommend the Shareholder Group Tender Offer or (ii) following completion of such Shareholder Group Tender Offer, the Shareholder Group holds two thirds of the then-outstanding Voting Securities, then Section 4.1(b) shall automatically terminate upon completion of the Shareholder Group Tender Offer.
(c) If, at any time during the Initial Standstill Period or the Subsequent Standstill Period, (i) the Company enters into definitive documentation providing for a transaction that, if consummated, would constitute a Company Change of Control; (ii) the Board publicly announces its determination that (A) it will sell or dispose of, or has commenced a process by which it proposes to sell or dispose of, the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, (B) will consider offers or proposals for a transaction that, if consummated, would result in a Company Change of Control, or (C) the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, is for sale; or (iii) a tender, takeover, exchange or similar offer that, if consummated, would constitute a Company Change of Control is commenced or the subject of an announcement of a firm intention to be made or commenced by any Person or group of Persons acting in concert and the Board either (x) publicly recommends that shareholders of the Company tender their shares of the Company to the Person or group of Persons acting in concert making such offer or (y) fails to recommend that the shareholders of the Company reject such offer, in each case within ten (10) Business Days after the date of commencement or posting of such offer, then, in any such case, the provisions of Section 4.1(a) and Section 4.1(b) shall terminate immediately and all other provisions of this Agreement shall remain in full force and effect; provided, however, that this clause shall not if, (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) 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” transactionx) with respect to any security clause (other than a broad-based market basket i) of this sentence, such transaction is terminated without being consummated, (y) with respect to clause (ii) of this sentence, the Board has publicly announced that it has rescinded such determination or index(z) with respect to clause (iii) of this sentence, such offer or similar transaction is withdrawn, terminated or expires without being consummated or if the Board publicly recommends that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities shareholders of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose reject such offer, then, in any such case all provisions of or unwind call option, swap or hedging positions they may have as of Section 4.1 previously terminated shall be reinstated and shall be in full force and effect in accordance with their terms from and after the date hereof relating to securities of such termination, public announcement, withdrawal or expiration, as the Company);
(vi) (A) call case may be; provided further, that such reinstatement shall not prevent Theta or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into Affiliates from continuing to pursue any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of activities described in this Section 2(a4.1(c) shall not be deemed to prohibit any of that were definitively commenced after the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure date of such communicationstermination, but at or prior to the date of such reinstatement.
(bd) Each Notwithstanding anything to the contrary in this Section 4.1, nothing herein shall prohibit or prevent Theta or any of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associatesfrom acquiring securities of, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedor from entering into any merger or other business combination with, at the 2014 Annual Meetinganother Person that Beneficially Owns any Company Shares; provided, and further agrees however, that at the 2014 Annual Meeting it shall (i) vote such other Person shall have acquired such Company Shares or other securities other than in favor contemplation of the 2014 Company SlateTheta or any of its Affiliates acquiring the securities of, or entering into any such merger or other business combination with, such Person; (ii) vote the Beneficial Ownership of such Company Shares or other securities by such other Person shall not be a primary reason for ratification Theta or any of Ernst & Young LLP as its Affiliates acquiring the Company’s auditors for the 2014 fiscal yearsecurities of, or entering into any such merger or other business combination with, such other Person; and (iii) vote for “say on pay” resolutions recommended by the Board. At combined Beneficial Ownership of such Company Shares of Theta or any subsequent special shareholders’ meeting (of its Affiliates entering into the business combination and such other Person would not result in Theta or adjournments any of its Affiliates or postponements thereof) during the Covered Period each of the PW Group Shareholderssuch other Person being required, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election pursuant to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the BoardFinnish Securities Market Act, to commence a mandatory tender offer to acquire additional Company Shares.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance Commencing with Section 5 [ * ] (the “Covered [ * ] Date”) and expiring [ * ] ([ * ]) months following the [ * ] Date (such [ * ] period, the “Standstill Period”), except as expressly set forth in this Agreement, neither it AZ nor any of its Affiliates Affiliates, without the prior consent of Rigel or Associates willexcept as provided for in this Agreement or in any agreement referred to herein, and it will cause each or in any agreement executed after the date hereof by Rigel with AZ or any of its Affiliates and Associates not toAffiliates, directly or indirectly in any manner, alone or in concert with otherswill:
(i) make, engage ineffect, initiate, cause or participate in (i) any way participate in, directly [ * ] of Rigel or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);any
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, [ * ] with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, [ * ] of a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this AgreementRigel Entity;
(iii) acquire[ * ], offer or propose to acquire, or agree seek to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members [ * ] of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationRigel Entity;
(iv) effect or seek take any action that might require a Rigel Entity to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or make a public announcement regarding any of its subsidiaries or joint ventures or any the types of their respective securities matters set forth in clause “(each, an “Extraordinary Transaction”i), or make any public statement with respect to an Extraordinary Transaction; provided, however, that ” of this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActSection 15.13(a);
(v) engage in any short sale agree or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation rightoffer to take, or other similar right encourage or propose (including, without limitationpublicly or otherwise) the taking of, any put or call option action referred to in clause “(i)”, “(ii)”, “(iii)” or “swap(iv)” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Companythis Section 15.13(a);
(vi) (A) call assist, induce or seek encourage any other person or entity to call, alone or in concert with others, take any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member action of the Boardtype referred to in clause “(i)”, “(D) solicit consents from shareholders ii)”, “(iii)”, “(iv)” or otherwise act or seek to act by written action, “(E) conduct a referendum v)” of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to this Section 1600 of the California Corporations Code or otherwise;15.13(a); or
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements arrangement or understandings agreement with any Third Party with respect other person or entity relating to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each Notwithstanding the foregoing provisions, AZ or its Affiliates will not be subject to any of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees restrictions set forth in this Section 15.13 with respect to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall a Rigel Entity if either: (i) vote in favor of the 2014 Company Slatesuch Rigel Entity publicly announces its intention to [ * ] (as defined below); (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal yearsuch Rigel Entity shall have entered into an agreement [ * ]; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting board of directors of such Rigel Entity shall have [ * ] or (or adjournments or postponements thereofiv) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.if a Third Party
(c) Nothing in this Section 2 Notwithstanding the foregoing, the Parties agree that AZ or its Affiliates shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would not be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder from (i) [ * ] of any Rigel Entity; or any Affiliate or Associate thereof)(ii) proposing other [ * ] to Rigel.
Appears in 1 contract
Sources: License and Collaboration Agreement
Standstill. (a) Each of Purchaser agrees that, during the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of Standstill Period (unless specifically requested in writing by the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willsuch Purchaser shall not, and it will shall cause each of its Affiliates and Associates (collectively and individually, the “Purchaser Affiliates,”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsstockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, 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) (for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not such Purchaser’s Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) Purchaser’s Purchaser Affiliates), having beneficial ownership, as determined Beneficial Ownership in accordance with Rule 13d-3 of the Exchange Act, over more than 19.9912.5% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Company Common Stock outstanding at such time, (2) with respect to excluding any issuance by the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Company of the Exchange Act, over more than 13.5% in the aggregate of the shares of Company Common Stock outstanding at such timeor options, warrants or (3) with respect other rights to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of acquire Common Stock outstanding at such time(or the exercise thereof) to any SLG Affiliated Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the extent such personsPurchaser and such Purchaser’s Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock Stock. For the avoidance of doubt, this Section 4.03(a)(iii) shall not restrict conversion of the Notes and shall not be violated by any conversion rate adjustment. For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of such Purchaser or its Affiliates will be deemed to be Beneficially Owned by such Purchaser or any of its Affiliates only so long as the beneficial ownership interest (x) such portfolio company is not an Affiliate of such personsPurchaser for purposes of this Section 4.03 under the definition of “Affiliate” in this Agreement, collectively (y) neither such Purchaser and nor any of its Purchaser Affiliates has encouraged, instructed, directed, assisted or advised such portfolio company with their Affiliates and Associatesrespect to the acquisition, do not increase thereafter (except solely as a result voting or disposition of further corporate actions taken securities of the Company by the portfolio company and (z) neither such Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(l)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) transfer, directly or indirectly, through swap or hedging transactions or otherwise, the Notes or Company Common Stock Beneficially Owned by such Purchaser or its Affiliates or any economic or voting rights decoupled from the underlying securities held by such Purchaser or its Affiliates to any Third Party that, to the knowledge of such Purchaser at the time it enters into such transaction, would result in such Third Party, together with its Affiliates and Associates, having Beneficial Ownership in the aggregate of more than 12.5% of the shares of Company Common Stock outstanding at such time; provided, that (x) such Purchaser or its Affiliates, as applicable, shall provide written notice to the Company if it has actual knowledge at the time of such transaction that such transfer, directly or indirectly, through swap or hedging transactions or otherwise, of its Notes or Company Common Stock to any Third Party would result in such Third Party, together with its Affiliates and Associates, having Beneficial Ownership in the aggregate of more than 9.9% of the shares of Company Common Stock outstanding at such time and (y) nothing in this clause (iv) shall in any way prohibit, limit or restrict any transfer (A) pursuant to a Permitted Loan or any foreclosure thereunder, (B) pursuant to a Third Party Tender/Exchange Offer or pursuant to a merger, consolidation or similar transaction entered into by the Company, (C) in a bona fide underwritten public offering (or an equivalent transaction under Rule 144A), in a block sale to one or more broker-dealers in connection with a transaction pursuant to Rule 144A or in a broker transaction pursuant to Rule 144 (provided that, in relation to any such Rule 144A offering or Rule 144 transaction, such Purchaser has not instructed or encouraged such initial purchaser, broker or broker dealer as applicable, to sell such Notes or Company Common Stock to a specific Third Party or class of Third Parties which would result in a violation of this clause (iv)), or (D) in a derivatives transaction entered into with, or purchased from, a bank, broker-dealer or other recognized derivatives dealer that is not a hedge fund or activist investor, or to the knowledge of such Purchaser, an Affiliate of a hedge fund or activist investor;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser or an its Purchaser Affiliate or an Associate thereof of any securities of the Company into any tender Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or exchange offer, or the vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser or an its Purchaser Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company)Transaction;
(vi) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders of the Company, including by written actionconsent, (B) seek representation on, or nominate any candidate to, on the BoardBoard of Directors, except as expressly set forth herein, (C) seek the removal of any member of the BoardBoard of Directors (other than an SLG Affiliated Director in accordance with Section 4.07), (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent with respect to the Company, (E) conduct a referendum of shareholders stockholders of the Company or (F) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, controlling or changing or influencing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth hereinBoard of Directors, (B) any material change in the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles certificate of Incorporation incorporation or Bylawsbylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make statements reasonably expected to disparage or cause to be disparaged the Company or its Subsidiaries or any of its current or former officers or directors in a manner reasonably expected to cause harm to such person and using a means of communication that is reasonably expected to be and results in a broad dissemination of such remarks (provided such Purchaser or its applicable Affiliates shall have an opportunity to publicly cure any such statement within two (2) Business Days after being informed by the Company that such Purchaser or its Affiliates have breached this clause (viii));
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the BoardBoard of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixx) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xxi) publicly request, directly or indirectly, any amendment amendment, modification or waiver of this Section 4.03 (including this clause (xi)), other than a confidential request made to the foregoing. Company that would not reasonably be expected to require any public disclosure.
(b) The foregoing provisions of this Section 2(a4.03(a) shall not be deemed to prohibit a Purchaser or any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders its Purchaser Affiliates or their respective directors, executive officers, partners, employees, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees ; provided that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedno such person may request, directly or indirectly, by it as any amendment, modification or waiver of the applicable record date to be present for quorum purposes this Section 4.03 (including Section 4.03(a)(xi) and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardthis Section 4.03(b)).
(c) Nothing in this Section 2 4.03 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements any SLG Affiliated Director acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company.
(d) Notwithstanding anything in this Section 4.03 to the contrary, if (i) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (it ii) the Company had not, reasonably prior to entering into such definitive agreement, provided the Purchasers with a written notice inviting the Purchaser Affiliates to make one or more proposals or offers to effect a transaction that would result in Change in Control, then after the announcement of such transaction and prior to the earlier of any termination of such definitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 4.03 will prevent the Purchaser Affiliates (A) from submitting to the Board of Directors one or more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more Purchaser Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) taking any actions in furtherance of the foregoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being understood approved by the Board of Directors and agreed (y) the Purchaser Affiliates do not make any public announcement or disclosure of such proposal, offer or actions other than any filings and disclosures that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder may be required in filings with the SEC.
(e) For purposes of this Section 4.03 only and notwithstanding anything herein to the contrary, in calculating any Purchaser’s or any Affiliates or Associates thereof shall seek to do indirectly through any Third Party’s Beneficial Ownership of shares of the Nominees or their Replacements anything that Company Common Stock, the number of shares of Company Common Stock issuable upon conversion of the Notes Beneficially Owned by each Purchaser and its Affiliates as of any date shall be, for each $1,000 principal amount of the Notes, the sum of the Daily Share Amount (after giving effect to the applicable Cash Percentage then in effect) for the applicable Observation Period as defined and calculated pursuant to the Indenture as if such Note was being converted on such date (and assuming all such Notes would be prohibited if done converted by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereofsingle holder).
Appears in 1 contract
Standstill. (a) Each Mill Road agrees that, during the Standstill Period (as defined below), (unless specifically requested in writing by the Company, acting through a resolution of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of Board not including the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) that is controlled by or under common control with Mill Road (collectively (with Mill Road) and individually, the “Mill Road Affiliates”, which for avoidance of doubt shall be deemed to include the general partner of Mill Road, any management company that controls Mill Road, any members of the board of directors, managing directors, general partners, managers or managing members (or substantial equivalent) of any such general partner or management company, and it will cause each of its Affiliates and Associates any Affiliate or Associate that is controlled by or under common control with such general partner or management company), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to knowingly advise, encourage or seek to influence any person (other than Mill Road Affiliates) with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder meeting) stockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);otherwise);
(ii) form, join, encourage, influence, advise or in any way knowingly participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not Mill Road Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company Company, or knowingly advise, encourage or seek to influence any such “group” in a manner inconsistent with any recommendation of the Board with respect thereto or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereofthereof (including by granting any proxy, consent or other authority to vote (other than proxies solicited by the Board) but excluding any customary brokerage account, margin account, prime brokerage account or the like), except as expressly set forth in this Agreement;Agreement;
(iii) except with the prior written consent of the Chair of the Board of Directors of the Company, knowingly acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group)group, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Mill Road (together with their Affiliates and Associates and the Mill Road Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any ownership interest in excess of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 17.0% of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholderstime; provided, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the othersthat, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthat the Mill Road Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely clause (iii) as the result of a share repurchase or similar Company action that reduces other reduction in the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;Stock;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or knowingly participate in, in (or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, ) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; Transaction”); provided, however, that this clause (iv) shall not (A) preclude the tender (or action not to tender) by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof the Mill Road Affiliates of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof the Mill Road Affiliates of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated other participation in any Extraordinary Transaction by the Company through an open bidding process or from offering to purchase the Mill Road Affiliates as holders of securities of the Company if a member on substantially the same terms as other similarly situated holders of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;Company;
(v) 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, including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates Mill Road knows to or derives derive any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);Company;
(vi) (A) call or seek to call, alone or in concert with others, request the calling of any meeting of shareholdersstockholders of the Company, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders of the Company or otherwise act or seek to act take corporate action by written actionconsent of the stockholders of the Company in a manner inconsistent with the recommendation of the Board, (E) conduct a referendum of shareholders stockholders of the Company, present at any annual meeting or any special meeting of the Company’s stockholders (F) provided that at any such meeting the Designee may respond to questions directed to Designee in his capacity as a director of the Company), or make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;Company;
(vii) take any material action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) Board; any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (C) Company; any other material change in the Company’s management, business or corporate structure, (D) structure; seeking to have the Company waive or make amendments or modifications to the Company’s Articles certificate of Incorporation incorporation or Bylawsits by-laws, or other actions actions, that may would reasonably be expected to impede or facilitate the acquisition of control of the Company by any person, (E) person; causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;Agreement;
(ix) knowingly enter into any discussions, negotiations, agreements or understandings with any Third Party third party to take any action with respect to any of the foregoingaction prohibited by this Section 2(a), or advise, assist, knowingly encourage or seek to persuade any Third Party third party to take any action or make any public statement with respect to any of the foregoingaction prohibited by this Section 2(a), or otherwise take or cause any action or make any public statement inconsistent with any of the foregoingthis Section 2(a); or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The Neither the foregoing provisions of this Section 2(a) nor any organizational document or agreement of the Company or Company Policy shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Mill Road Affiliates or their the directors, officers, partners, employees, members members, managers, agents or agents other representatives (acting in such capacity) (“Representatives”) of the Mill Road Affiliates from communicating privately with with, or from privately requesting a waiver of any of the foregoing provisions of this Section 2(a) from, the Company’s directors, officers or advisors Representatives so long as such communications are not intended to, and or requests would not reasonably be expected to, to require any public disclosure of such communicationscommunications or requests. For avoidance of doubt, this Section 2(a) shall not restrict the ability of the Designee, in his capacity as a director of the Company, to propose in any meeting of the Board or any committee thereof, or in any private communication with Representatives of the Company, that the Company take or refrain from taking any course of action contemplated by this Section 2(a).
(b) Each For purposes of this Agreement the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associatesterms “person” or “persons” shall mean any individual, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedcorporation (including not-for-profit), at the 2014 Annual Meetinggeneral or limited partnership, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (limited liability or adjournments unlimited liability company, joint venture, estate, trust, association, organization or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal other entity of any directors whose removal is not recommended by the Boardkind or nature.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Cooperation Agreement (Superior Industries International Inc)
Standstill. (a) Each From the Closing until the earlier of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each first (1st ) anniversary of the Luxor Shareholders solely Closing and the date on behalf which the Investor beneficially owns a number of itself Class A Shares equal to less than five percent (5%) of the Ordinary Shares, on a fully-diluted basis, of the Company (as appropriately adjusted for share splits, reverse share splits, share dividends, share consolidations, recapitalizations and its respective Affiliates and Associates the like), none of the Investor, AGHL or YF Fund shall, and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself Investor, AGHL and YF Fund shall procure that its respective Controlled Affiliates and Associates hereby severally and not jointly agrees that from shall not, without the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not toCompany’s prior written consent, directly or indirectly in any manner(whether acting alone, alone as a part of a group or otherwise in concert with others:
), except in connection with an exercise of the Investor’s rights under any of the Transaction Documents or the Shareholders Agreement: (i) make, engage in, acquire or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attemptoffer, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy additional Voting Securities of the Company, (Cii) any other material publicly seek or propose to change in or control the management or the Board of the Company’s management, business or corporate structure, (Diii) seeking propose to have called, or cause to be called, any meeting of Shareholders for the Company waive or make amendments or modifications purpose of electing directors to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control Board of the Company by or amending the Memorandum and Articles to facilitate any personof the actions described in the foregoing clause (i) or (ii) or this clause (iii), (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixiv) enter into any discussions, negotiations, agreements arrangements or understandings with any Third Party third party with respect to any of the foregoing, or (v) advise, assist, knowingly encourage act as a financing source for or seek to persuade otherwise invest in any Third Party to take other Person for the purpose of any action of the foregoing, or make (vi) publicly disclose any statement intention, plan or arrangement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each Notwithstanding Section 7.1(a) above, none of the PW Group Shareholders solely on behalf Investor, AGHL, YF Fund or any of itself and its their respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to shall be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At prohibited from making any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election confidential proposal to the Board of those director nominees nominated for election by the Board and against Company or requesting that the removal Company waive or amend any of any directors whose removal is not recommended by the Board.
(c) Nothing provisions in this Section 2 7.1. Furthermore, the restrictions set forth in Section 7.1(a) shall prohibit automatically terminate if (i)(A) the Board of the Company approves a transaction with any Person and (B) such transaction would result in such Person beneficially owning ten percent (10%) or more of the outstanding Voting Securities or Voting Securities with voting power, in aggregate, that is greater than the aggregate voting power of the Investor Shares held by the Investor and its Affiliates, or securities convertible into ten percent (10%) or more of the outstanding Voting Securities, or any option or other right to acquire ten percent (10%) or more of the Voting Securities, or any Person acquiring assets, individually or in any way limit any actions that may be taken by the Nominees aggregate, constituting ten percent (10%) or their Replacements acting solely as a director more of the fair market value of the assets of the Company and its Subsidiaries or to which ten percent (10%) or more of the net revenue, net income or EBITDA of the Company and its Subsidiaries are attributable of the Company (includingeach, without limitationa “Control Stake”), voting on (ii) any matter submitted Person or Persons acting in concert shall have commenced or publicly announced an intention to commence a tender offer or exchange offer for consideration by a Control Stake, or shall have made a proposal to the BoardCompany or any holder of Voting Securities to acquire a Control Stake (including through an acquisition of securities of such holder or any of its Affiliates which beneficially own any Voting Securities), participating in deliberations or discussions (iii) any Competitor acquires five percent (5%) or more of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)outstanding Voting Securities.
Appears in 1 contract
Sources: Investor Rights Agreement (Alibaba Group Holding LTD)
Standstill. (a) Each Subject to (i) the accuracy of the PW Group Shareholders solely on behalf of itself representations and its respective Affiliates and Associates, each warranties of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination Company made in Article II of this Agreement in accordance all material respects as of the date hereof (or, with Section 5 respect to representations and warranties that by their terms speak as of another date, as of such other date), and to the extent made as of the Closing, as of the Closing and (ii) compliance by the Company in all material respects with its obligations under the Transaction Documents, the Investor agrees that, until October 6, 2018 (the “Covered Standstill Period”), except as expressly set forth in this Agreementit will not, neither it nor and will not cause any of its Affiliates or Associates will, and it will cause each not permit any of its Affiliates and Associates not toSubsidiaries or Permitted Transferees, directly or indirectly in any manner, acting alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” as part of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is used under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),) to take or propose (whether publicly or otherwise) to take any of the following actions: (i) acquisition of Beneficial Ownership (as defined in Section 13(d)(3hereinafter) of the Exchange Act any Common Stock or other securities or rights convertible into or exchangeable for purposes Common Stock, (ii) acquisition of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some material assets of the persons identified on the Group 13D as of the date hereof and their Affiliates and AssociatesCompany, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, conduct of any tender offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including offer involving any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken held by the CompanyInvestor and its subsidiaries), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, other business combination, recapitalization, reorganization, sale or acquisition of material assetsrecapitalization restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transactionthe Company, or (v) any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to any voting securities of the Company; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a4.1(a) shall not be deemed prevent the Investor and its Subsidiaries from acquiring Beneficial Ownership of any Common Stock or other securities or rights convertible into or exchangeable for Common Stock if, after giving effect to prohibit any such acquisition, the aggregate amount of all Common Stock Beneficially Owned by the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directorsInvestor, officersits Subsidiaries, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended toAffiliates, and would not reasonably be expected to, require any public disclosure of such communications.
its Permitted Transferees constitutes less than 25% (bthe “Permitted Interest”) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).of
Appears in 1 contract
Sources: Investment Agreement (Hartford Financial Services Group Inc/De)
Standstill. (a) Each member of the PW MIR Group Shareholders solely on behalf agrees that, during the Covered Period (as defined below), unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates, each a majority of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Company’s directors not including the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)MIR Designee, except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willshall not, and it will shall cause each of its controlling and controlled Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (including for the avoidance of doubt any of its directors, officers, partners (other than limited partners) and Associates personnel) (collectively and individually, the “MIR Affiliates”; provided, that no portfolio company of the MIR Group shall be deemed a “MIR Affiliate” so long as such portfolio company (i) has not discussed the Company or its business with the MIR Group or the MIR Designee, (ii) has not received from the MIR Group or the MIR Designee information concerning the Company or its business, and (iii) is not acting at the request of, in coordination with, on behalf of, or at the direction of any member of the MIR Group), not to, directly or indirectly (including, without limitation, through its advisors, agents, representatives or third parties), in any manner, alone or in concert with others:
(i) (A) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv14a-1(l)(2) of the Exchange Act(iv)) or consents to vote, or seek to advise, knowingly encourage or knowingly influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) including for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting, (B) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)) or disclose to Third Parties its voting intentions or votes as to matters submitted to a stockholder vote, or (C) initiate, encourage or participate in, directly or indirectly, any “withhold” or similar campaign;
(ii) (A) form, join, knowingly encourage, knowingly influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes Act) or other group of this Agreement, any such group, a “Section 13(d) Group”) investors with any persons (other than, who are not MIR Affiliates with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner its securities or (B) agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders MIR Group (together with their Affiliates and Associates and MIR Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% ownership interest in the aggregate of the more than 8,204,820 shares of Common Stock outstanding at such time (as adjusted for any stock splits, reclassifications, combinations, stock dividends or (B) to similar actions by the extent none of the PW Group ShareholdersCompany); provided, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe MIR Group and MIR Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock so long as Stock;
(iv) other than in open market broker sale transactions or in underwritten public offerings or in a transaction approved by the beneficial ownership interest Board, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the MIR Group or any Affiliate of MIR to any person or entity not a Party to this Agreement, a director or officer of the Company, a MIR Affiliate, or legal counsel to any Party to this Agreement (a “Third Party”) that (A) would knowingly result in such personsThird Party, collectively together with their its Affiliates and Associates, do not increase thereafter owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 3% of the outstanding Common Stock (except solely as a result of further corporate adjusted for any stock splits, reclassifications, combinations, stock dividends or similar actions taken by the Company), unless and until (B) at the time of such ownership interest before and after such subsequent increase does not exceed such limitationtransaction, has filed a Schedule 13D with respect to the Company, or (C) has run (or publicly announced an intention to run) a proxy contest with respect to another company in the past two (2) years;
(ivv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way knowingly assist or knowingly facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or issuance of securities, sale or acquisition of material assets, separation, spin-off, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender MIR Group or a MIR Affiliate from voting its shares with respect to an Extraordinary Transaction approved by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the Board and put to a stockholder vote, receiving consideration as a stockholder of the Company in connection with an Extraordinary Transaction, which has been approved by the Board, pursuant to the terms of such Extraordinary Transaction, or an Affiliate or an Associate thereof of tendering any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any offer for securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated which has been approved by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActBoard;
(vvi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company)’s securities;
(vivii) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, on the Board, except as set forth herein, (C) seek the removal of any member of the BoardBoard or management, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders or stockholders, (F) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code MGCL or otherwise, or (G) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(viiviii) knowingly take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation Charter or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixx) initiate any discussions with or enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xi) other than with respect to the MIR Designee and not prohibited under (and in accordance with) the Company Policies, initiate discussions with any employee at the Company other than the Chief Executive Officer, Chief Financial Officer, and General Counsel (and other than any members of the Board) as set forth in the proviso below regarding permitted private communications; or
(xxii) publicly request, directly or indirectly, any amendment or waiver of the foregoingforegoing other than through private, non-public requests that are not intended to, and would not reasonably be expected to, require any public disclosure. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders MIR Group (or their directors, officers, partners, employees, members or agents (acting in such capacitythe MIR Designee) from communicating privately with the Company’s directorsChief Executive Officer, officers Chief Financial Officer, General Counsel, any member of the Board, or advisors the MIR Designee, as applicable, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each During the Covered Period, each member of the PW MIR Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as it, or by any of the applicable record date MIR’s Affiliates, to be present for quorum purposes and to be voted voted, at the Company’s annual and special stockholder meetings and at any adjournments or postponements thereof, and (ii) vote in favor of the election to all directors nominated by the Board of those director nominees for election at any such meeting (including the MIR Designee as applicable), against any directors not nominated and recommended for election by the Board and against the removal of any directors whose removal is not recommended by in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting (including, for the avoidance of doubt, any stockholder proposals); provided, however, that with respect to a proposal put to a vote of the stockholders to approve an Extraordinary Transaction, the MIR Group and MIR Affiliates may vote their shares of Common Stock beneficially owned, directly or indirectly, in the discretion of the MIR Group or MIR Affiliate, as applicable.
(c) Nothing in this Section 2 Agreement shall prohibit or in any way limit any actions that may be taken by deliberations of the Nominees or their Replacements MIR Designee with the Board acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary or other duties as a director of the Company Company.
(it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder d) Notwithstanding any provision herein to the contrary, nothing in this Agreement shall prohibit any Party from (i) communicating, on a confidential basis, with attorneys, accountants, or financial advisors; (ii) taking any action necessary to comply with any law, rule or regulation or any Affiliates action required by any governmental or Associates thereof shall seek to do indirectly through regulatory authority or stock exchange that has, or may have, jurisdiction over the MIR Group or the Company or any of its subsidiaries, as the Nominees case may be (so long as such action does not arise as a result of or would otherwise constitute a breach of this Agreement), (iii) in the case of the MIR Group, communicating confidentially in management reports to their Replacements anything investors in a manner that does not disclose “Evaluation Material” (as such term is defined in the Confidentiality Agreement) and that is not reasonably expected to become public (and so long as such communication does not arise as a result of or would be prohibited if done by otherwise constitute a PW Group/Luxor/▇▇▇▇▇▇ Shareholder breach of this Agreement); or (iv) complying with any Affiliate subpoena or Associate thereof)other applicable legal process.
Appears in 1 contract
Sources: Nomination and Cooperation Agreement (Veris Residential, L.P.)
Standstill. (a) Each member of the PW L&B and Orange Group Shareholders solely on behalf of itself and its respective Affiliates and Associatesagrees that, each during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each Board approved by a majority of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company’s directors), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and it will cause each of its Affiliates other Person listed as a Participant in the Preliminary Proxy Statement (collectively and Associates individually, the “L&B and Orange Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(a) (i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or (ii) seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, or (iii) 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) a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meetingstockholder meeting or (B) voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or (iv) make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under of the Exchange Act or otherwise);
(iib) (i) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof who are not L&B and their Orange Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or (ii) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or (iii) subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement, other than, with respect to clauses (ii) and (iii), a voting trust, arrangement or similar agreement solely among L&B and Orange Affiliates;
(iiic) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders L&B and Orange Group (together with their Affiliates the L&B and Associates and Orange Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over 5% or more than 19.99% in the aggregate of any class of securities of the shares of Common Stock Company outstanding at such time time;
(d) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the L&B and Orange Group or any L&B and Orange Affiliate to any person or entity not (i) a party to this agreement, (ii) a member of the Board, (iii) an officer of the Company or (Biv) to the extent none of the PW Group Shareholdersa L&B and Orange Affiliate (each, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d“Third Party”) Group with any of the others, that would knowingly result in (1) with respect to the PW Group Shareholders (such Third Party, together with their Affiliates its affiliates and Associates and associates, owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be except in a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken transaction approved by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationBoard;
(ive) (i) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”)) other than an Extraordinary Transaction approved by the Board; provided that nothing herein this paragraph (d) shall preclude or prohibit any Person from tendering into a tender or exchange offer or voting his securities, or (ii) make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vif) (Ai) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders, including by written actionconsent, (Bii) seek representation on, or nominate any candidate to, the Board, except as expressly set forth herein, (Ciii) seek the removal of any member of the Board, (Div) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, or (Fv) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 Rule 14d-5 or Rule 14a-7 of the California Corporations Code Exchange Act, Section 2-512 or Section 2-513 of the MGCL, or otherwise;
(viig) take any public action in support of or make any public proposal or request that constitutesconstitutes or relates to: (Ai) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (Bii) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, ; (Ciii) any other material change in the Company’s management, business or corporate structure, ; (Div) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation charter or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, ; (Ev) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (Fvi) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiih) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixi) enter into any discussions, negotiations, agreements agreements, or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or;
(xj) publicly request, directly or indirectly, any amendment or waiver of the foregoingforegoing in a manner in which such request would require public disclosure pursuant to applicable law, rule or regulation; or
(k) authorize, commit to or agree in writing or otherwise to do anything prohibited in this Section 4. The Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 2(a) 4 shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders L&B and Orange Group or their its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, directors or officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it . The provisions set forth in this Section 4 are effective as of the record date hereof and shall remain in full force and effect for the 2014 Annual Meeting to be present for quorum purposes period (the “Covered Period”) commencing on the date hereof and to be voted, at ending on the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall earlier of (i) vote in favor of the 2014 Company Slate; July 15, 2016, (ii) vote the date that is 30 days prior to the first day of the earliest advance notice window for ratification of Ernst & Young LLP as nominating individuals for election to the Board or proposing other business to be considered by the Company’s auditors for stockholders at the 2014 fiscal year2016 annual meeting of stockholders; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during date that is 14 days after the Covered Period each of date, if any, that the PW L&B and Orange Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted provides written notice in favor of the election good faith to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions Company that may be taken by the Nominees or their Replacements acting solely as a director of the Company has materially breached any of its commitments or obligations under this Agreement (includingspecifying the relevant acts in such written notice), without limitationexcept that if such material breach can be cured, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company shall have 14 days after the date of such written notice within which to cure its material breach and this clause (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof iii) shall seek to do indirectly through any not apply in the event of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)such cure.
Appears in 1 contract
Sources: Cooperation Agreement (Macerich Co)
Standstill. During the period starting on the date of this Agreement until the Expiration Date (such period, the “Cooperation Period”), each Investor will not, and will cause its controlling and controlled (and under common control) Affiliates and its and their respective representatives acting on their behalf (collectively with the Investors, the “Restricted Persons”) to not, directly or indirectly, without the prior consent, invitation, or authorization by the Company or the Board, in each case, in writing:
(a) Each acquire, effect or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of any Voting Securities (as defined below) or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Investors (together with their Affiliates) having beneficial ownership of more than 9.9% of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCommon Stock outstanding at such time;
(b) (A) call or seek to call (publicly or otherwise), each alone or in concert with others, a meeting of the Luxor Shareholders solely on behalf Company’s stockholders or act by written consent in lieu of itself and its respective Affiliates and Associates and each a meeting (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Board or nominate or propose the date hereof until nomination of, or recommend the termination of this Agreement in accordance with Section 5 (nomination of, any candidate to the “Covered Period”)Board, except as expressly set forth in this Agreementparagraphs 1 or 4, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(iC) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder stockholder proposal to the Company or the Board or any committee thereof, (pursuant D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (E) conduct a referendum of stockholders of the Company; provided that nothing in this paragraph will prevent the Investors or their Affiliates from taking actions in furtherance of identifying any Replacement New Director in accordance with paragraph 4, as applicable;
(c) make any request for stockholder lists or other books and records of the Company or any of its subsidiaries under any statutory or regulatory provisions providing for stockholder access to Rule 14a-8 books and records of the Company or any of its subsidiaries;
(d) engage in any “solicitation” (as such term is defined under the Exchange Act (as defined below)) of proxies, and including, for the avoidance of doubt, solicitations of ten or otherwise);
(iifewer stockholders which would otherwise be excluded from the definition of “solicitation” pursuant to Rule 14a-2(b)(2) formpromulgated under the Exchange Act, join, encourage, influence, advise with respect to the election or in removal of directors of the Company or any way participate in any other matter or proposal relating to the Company or become a “groupparticipant” (as such term is defined in Section 13(d)(3) Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act for purposes of this Agreement, Act) in any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all solicitation of proxies or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementconsents;
(iiie) acquire, offer make or propose submit to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent its Affiliates any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such timeproposal for, or offer of (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companywithout conditions), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangementsale of all or substantially all assets, business combination, recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution dissolution, spin-off, split-off or other similar separation of one or more business units or similar extraordinary transaction involving the Company or any of (including its subsidiaries or and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”), ) either publicly or make any in a manner that would reasonably be expected to require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise dispose of or unwind call option, swap or hedging positions they may have participating in any Extraordinary Transaction on the same basis as of the date hereof relating to securities other stockholders of the Company);
(vif) make any public proposal with respect to (A) call any change in the number, term or seek to call, alone or in concert with others, any meeting identity of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member directors of the Board, (D) solicit consents from shareholders Company or otherwise act or seek to act by written action, (E) conduct a referendum the filling of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, Board except as set forth hereinin accordance with paragraphs 1 or 4, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in to the Board or the Company’s management, business management or corporate or governance structure, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Amended and Restated Certificate of Incorporation or BylawsIncorporation, Bylaws (as defined below) or other actions that may impede or facilitate the acquisition of control of the Company by any personorganizational documents, (E) causing a class of securities of the Company Common Stock to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiig) make knowingly encourage or advise any public disclosureThird Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the giving or withholding of any proxy relating to, announcement or statement regarding other authority to vote, any intentVoting Securities, purpose, plan or proposal (B) in conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board) (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted by this Agreement);
(h) form, join or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act, with respect to any Voting Securities, other than solely with Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(i) enter into a voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely with Affiliates of the Investors or (C) granting proxies in solicitations approved by the Board;
(j) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than any index fund, exchange traded fund, benchmark fund or basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of any of the securities of the Company and would, in the aggregate or individually, result in the Investors ceasing to have a “net long position” in the Company;
(k) sell, its managementoffer, policies or affairsagree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock of the Company held by a Restricted Person to any Third Party;
(l) institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company or any of its securities subsidiaries or assets any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to paragraph 20, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing bona fide commercial disputes that is inconsistent with do not relate to the provisions subject matter of this Agreement, (D) exercising statutory appraisal rights, or (E) responding to or complying with validly issued legal process;
(ixm) enter into any discussions, negotiations, agreements agreements, arrangements, or understandings (whether written or oral) with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect that the Restricted Persons are prohibited from taking pursuant to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis paragraph 8; or
(xn) publicly request, directly make any request or indirectly, submit any amendment proposal to amend or waiver of waive the foregoing. The foregoing provisions terms of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Agreement (including this subclause), in each case publicly or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and which would not reasonably be expected to, require any to result in a public announcement or disclosure of such communications.
(b) Each request or proposal; provided, that the restrictions in this paragraph 8 shall terminate automatically upon the earliest of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall following: (i) vote in favor any material breach of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended this Agreement by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on a failure to appoint any matter submitted for consideration by the Board, participating in deliberations or discussions of New Director to the Board and making suggestions its committees in accordance with paragraphs 1 and 2, a failure to appoint a Replacement New Director in accordance with paragraph 4, a failure to form the Strategy Committee in accordance with paragraph 2, or raising issues a failure to issue the Press Release (as defined below) in accordance with paragraph 10) upon five business days’ written notice by any of the Investors to the BoardCompany if such breach has not been cured within such notice period, provided that the Investors are not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (ii) consistent the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that, if consummated, would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company, (y) one or more definitive agreements providing for the acquisition by the Company or its subsidiaries of one or more businesses or assets having an aggregate value exceeding 25% of the market capitalization of the Company during the Cooperation Period, or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the Common Stock of the Company (including on an as-converted basis, and including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be counted toward this clause (z)) and (iii) the commencement of any tender or exchange offer (by any person or group other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files with the SEC (as defined below) a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this paragraph 8) will prohibit or restrict any of the Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a Third Party, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person), (C) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (D) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company or (E) communicating with the Contact Personnel privately in accordance with paragraph 9. Furthermore, nothing in this Agreement shall prohibit or restrict an Investor Director from exercising his or her rights and fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates restrict his or Associates thereof shall seek to do indirectly through any her discussions solely with other members of the Nominees Board and/or management, advisors, representatives or their Replacements anything agents of the Company; provided that would be prohibited if done by any such discussions are limited to communications in his or her capacity as a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)director.
Appears in 1 contract
Sources: Board Composition Agreement (Hewlett Packard Enterprise Co)
Standstill. (a) Each member of the PW Kanen Group Shareholders solely on behalf agrees that, during the term of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any shall not, and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersthe “Kanen Affiliates”) to not:
(i) (A) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents consent to vote, vote or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meetingmeeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), (B) or make or be the a proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)) or (C) initiate, encourage or participate in any “withhold” or similar campaign, directly or indirectly;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not Kanen Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquiresell, offer or propose to acquire, or agree to acquire, sell directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any the securities of the Company or any rights decoupled from the underlying securities of the Company that held by the Kanen Group or any Kanen Affiliate to any person or entity not a (A) party to the extent any this agreement, (B) member of the PW Group ShareholdersBoard, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d(C) Group with any officer of the others, Company or (D) a Kanen Affiliate (a “Third Party”) that would knowingly result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (such Third Party, together with their Affiliates its affiliates and Associates and associates, owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholderssuch, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of except in a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken transaction approved by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationBoard;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or frustrate or seek to frustrate any Extraordinary Transaction proposed or endorsed by the Company, or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the (x) tender (or action not to tender) by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the Kanen Group or an a Kanen Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or (y) vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the Kanen Group or an a Kanen Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets in accordance with the terms of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Actthis Agreement);
(v) 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, including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, call any meeting of shareholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written actionconsent, or (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwiseshareholders;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (B) any material change in the capitalization, stock repurchase programs and practices, capital or asset allocation programs and practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, ; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles articles of Incorporation incorporation or Bylawsthe by-laws, or other actions actions, that may impede or facilitate the acquisition of control of the Company by any person, ; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company’s Affiliates, or any of the Company’s past, present or future officers or directors appointed during the term of this Agreement;
(ix) other than litigation to enforce the provisions of this Agreement, institute, solicit or assist or join as a party (or threaten to institute, solicit, assist or join as a party), any action, complaint, litigation, arbitration, or similar proceeding against or to which the Company, its Affiliates or any of their respective past, present or future directors, officers or employees appointed during the terms of this agreement (including derivative actions) is a party;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xii) take any action that would result in the Kanen Group or any member becoming an Acquiring Person under the Rights Agreement; or
(xxiii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a3(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders Kanen Group or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with with, or from privately requesting a waiver of any of the foregoing provisions of this Section 3(a) from, the Company’s directorsdirectors or officers, officers or advisors so long as such communications or requests are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) communications or requests. Each member of the PW Kanen Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it foregoing provisions shall apply, mutatis mutandis, with respect to (ix) vote in favor any and all of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; subsidiaries and (iiiy) vote for “say on pay” resolutions recommended by any and all other entities in which the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during Company, to the Covered Period each knowledge of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedKanen Group, directly or indirectly, by it as beneficially owns at least 20% of the applicable record date to be present for quorum purposes and to be voted outstanding capital stock, in favor of the election each case to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely same extent as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues such provisions apply with respect to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Company.
Appears in 1 contract
Standstill. (a) Each In consideration of and as a condition to the Confidential Information being furnished to Alexion by the Company, Alexion hereby agrees that, without the prior written consent of the PW Group Shareholders solely on behalf Board of itself Directors of the Company or except as expressly agreed to in writing by the Parties hereto, for a period of 12 months from July 22, 2022, Alexion will not, and will cause its Affiliates (including AstraZeneca plc and its respective Affiliates Affiliates) not to, and Associates, each of the Luxor Shareholders solely on behalf of itself and will use its respective Affiliates and Associates and each of the reasonable best efforts to cause A▇▇▇▇▇▇’▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates Affiliates’ Representatives not to, acting alone or as part of a group, directly or indirectly in any manner, alone or in concert with othersindirectly:
(i) makeacquire, engage offer or agree to acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell) or otherwise obtain an economic interest in, by purchase, sale or otherwise, any right to direct the voting or disposition of, or any other right with respect to, any securities of the Company (or any direct or indirect rights, options or other securities convertible into or exercisable or exchangeable for such securities or any obligations measured by the price or value of any shares of capital stock of the Company, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any way of the foregoing may be 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) and whether or not any of the foregoing would give rise to “beneficial ownership” (as defined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and, in each case, whether or not any of the foregoing is obtained by means of borrowing of securities or operation of any Derivative Security, or any significant portion of the assets, properties or indebtedness of the Company;
(ii) make or participate in, directly or indirectly, in any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Securities and Exchange ActCommission) or consents or undertakings to vote, or to seek to adviseinfluence or control, encourage or influence in any person with respect to manner whatsoever, the voting of any securities of the Company;
(iii) make any statement or proposal to the Board of Directors of the Company, the Company’s Representatives or any of its stockholders with respect to, or make any public announcement with respect to, or solicit or submit a proposal or offer for, directly or indirectly, any merger, business combination, recapitalization, reorganization, asset purchase, tender offer, exchange offer or other similar extraordinary transaction involving the Company or any securities convertible of its securities, assets or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)properties;
(iiiv) form, join, encourage, influence, advise join or in any way participate in any a “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group connection with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Actforegoing;
(v) engage otherwise seek representation on or to influence or control, in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to callmanner whatsoever, alone or in concert with others, any meeting the management, Board of shareholders, including by written action, (B) seek representation on, Directors or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member policies of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwiseCompany;
(viivi) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including disclose any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purposeintention, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement arrangement inconsistent with any of the foregoing;
(vii) demand a copy of the Company’s record of security holders, s▇▇▇▇ ledger list or any other books or records of the Company;
(viii) take any action that could reasonably be expected to require the Company or Alexion to make a public announcement regarding any of the events (or the possibility of any of the events) described in this Section 7;
(ix) contest the validity of this Agreement or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 7;
(x) request the Company to amend or waive any provision of this Section 7 or make any public announcement with respect to the restrictions of this Section 7; or
(xxi) publicly requestadvise, directly assist or indirectlyencourage, or direct any amendment person to advise, assist or waiver encourage any other person, in connection with any of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/A▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself represents and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it warrants that, as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be votedJuly 22, at the 2014 Annual Meeting2022, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor neither Alexion nor any of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the A▇▇▇▇▇▇’▇ Shareholders shall cause all shares of Common Stock beneficially ownedsubsidiaries or Affiliates (including AstraZeneca plc and its Affiliates) possess any economic interest, directly voting right or indirectly, by it as other right with respect to any security (including Derivative Securities) of the applicable record date Company. Notwithstanding anything to the contrary herein, Alexion shall be present for quorum purposes and entitled to be voted in favor of the election make confidential proposals to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director Directors of the Company (includingor any committee thereof) regarding any of the matters set forth in clauses (i) or (iii) of this Section 7, without limitation, voting on any matter submitted for consideration but only so long as such request or proposal would not reasonably be expected to require public disclosure by the BoardCompany or Alexion. Notwithstanding the foregoing, participating in deliberations this Section 7 shall be of no further force and effect if (A) the Company enters into a definitive agreement with a person or discussions “group” of persons involving the direct or indirect acquisition of 50% or more of the Company’s outstanding equity securities or 50% or more of the Company’s consolidated assets, other than in connection with an internal restructuring transaction involving only the Company, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction, including any spin-off transaction involving any division or operating segment of the Company, or (B) a tender or exchange offer is commenced that, if consummated, would result in 50% or more of the Company’s outstanding equity securities being owned by persons other than the current holders of the Company’s equity securities and the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of Directors of the Company fails to recommend within ten (it being understood and agreed 10) business days from the date of commencement of such offer that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)its stockholders reject such offer.”
Appears in 1 contract
Sources: Confidentiality Agreement (Alexion Pharmaceuticals, Inc.)
Standstill.
(a) Each of Purchaser agrees that, during the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of Standstill Period (unless specifically requested in writing by the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willsuch Purchaser shall not, and it will shall cause each of its Affiliates and Associates (collectively and individually, the “Purchaser Affiliates”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsstockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, 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) (for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of Directors at any shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not such Purchaser’s Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser (together with their Affiliates and Associates and any other persons with whom any its Purchaser Affiliates), having Beneficial Ownership of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 number of shares of Company Common Stock that exceeds the number of shares of Company Common Stock that would have been issuable upon conversion of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding Notes at such time (assuming for such purposes that all of the Notes issued at the Closing remained outstanding), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (Bor the exercise thereof) to any SL Affiliated Director as compensation for their membership on the extent none Board of the PW Group ShareholdersDirectors; provided, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the extent such personsPurchaser and such Purchaser’s Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock Stock. For the avoidance of doubt, this Section 4.03(a)(iii) shall not restrict conversion of the Notes and shall not be violated by any conversion rate adjustment. For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of such Purchaser or its Affiliates will be deemed to be Beneficially Owned by such Purchaser or any of its Affiliates only so long as the beneficial ownership interest (x) such portfolio company is not an Affiliate of such personsPurchaser for purposes of this Section 4.03 under the definition of “Affiliate” in this Agreement, collectively (y) neither such Purchaser and nor any of its Purchaser Affiliates has encouraged, instructed, directed, assisted or advised such portfolio company with their Affiliates and Associatesrespect to the acquisition, do not increase thereafter (except solely as a result voting or disposition of further corporate actions taken securities of the Company by the portfolio company and (z) neither such Purchaser or any of its Affiliates is a member of a “group” (as defined in Section 13(d)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; providedprovided that, howeverfor the avoidance of doubt, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser or an its Purchaser Affiliate or an Associate thereof of any securities of the Company into any tender Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or exchange offer, or the vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders such Purchaser or an its Purchaser Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders of the Company, including by written actionconsent, (B) seek representation on, or nominate any candidate to, on the BoardBoard of Directors, except as expressly set forth herein, (C) seek the removal of any member of the BoardBoard of Directors (other than an SL Affiliated Director in accordance with Section 4.07), (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent with respect to the Company, (E) conduct a referendum of shareholders stockholders of the Company or (F) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(viivi) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, controlling or changing or influencing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth hereinBoard of Directors, (B) any a material change in the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) any other a material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles certificate of Incorporation incorporation or Bylawsbylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) make statements reasonably expected to disparage or cause to be disparaged the Company or its Subsidiaries or any of its current or former officers or directors in a manner reasonably expected to cause harm to such person and using a means of communication that is reasonably expected to be and results in a broad dissemination of such remarks (provided such Purchaser or its applicable Affiliates shall have an opportunity to publicly cure any such statement within 2 Business Days after being informed by the Company that such Purchaser or its Affiliates have breached this clause (vi));
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the BoardBoard of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;Section 4.03; or
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(xb) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a4.03(a) shall not be deemed to prohibit a Purchaser or any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders its Purchaser Affiliates or their respective directors, executive officers, partners, employees, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors or requesting actions in connection with a Permitted Loan or Permitted Debt Financing Transaction consistent with Section 4.09, in each case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates; provided, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedno such person may request, directly or indirectly, by it as any amendment, modification or waiver of the applicable record date to be present for quorum purposes and to be voted in favor of the election this Section 4.03 (including this Section 4.03(b)) other than a confidential request made to the Board Company that would not reasonably be expected to require any public disclosure of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardsuch request.
(c) Nothing Notwithstanding anything in this Section 2 shall prohibit 4.03 to the contrary, if (i) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided each Purchaser with a written notice inviting the Purchaser Affiliates to make one or more proposals or offers to effect a transaction that would result in Change in Control, then after the announcement of such transaction and prior to the earlier of any way limit termination of such definitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 4.03 will prevent the Purchaser Affiliates (A) from submitting to the Board of Directors one or more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more Purchaser Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) taking any actions that may be taken in furtherance of the foregoing, including actions relating to the delisting and/or deregistration of the Company’s securities, as applicable, and obtaining equity and/or debt financing for the alternative transaction as long as any proposal or offer is conditioned on the proposed transaction being approved by the Nominees or their Replacements acting solely as a director Board of Directors.
(d) For purposes of this Section 4.03 only and notwithstanding anything herein to the contrary, in calculating any Purchaser’s Beneficial Ownership of shares of the Company (includingCommon Stock, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions number of shares of Company Common Stock issuable upon conversion of the Board Notes Beneficially Owned by each Purchaser and making suggestions or raising issues its Affiliates as of any date shall be, for each $1,000 principal amount of the Notes, the sum of the Daily Share Amount (after giving effect to the Boardapplicable Cash Percentage then in effect) consistent with his fiduciary duties for the applicable Observation Period as a director of defined and calculated pursuant to the Company Indenture as if such Note was being converted on such date (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that assuming all such Notes would be prohibited if done converted by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereofsingle holder).
Appears in 1 contract
Sources: Investment Agreement
Standstill. (a) Each member of the PW JDL Group Shareholders solely on behalf of itself and its respective Affiliates and Associatesagrees that, each of during the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither he or it nor any of its Affiliates or Associates will, 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, directly or indirectly in any manner, alone or in concert with others:
(ia) 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board.
(b) 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 JDL Group or one or more Affiliates of a member of the JDL Group with respect to the Common Stock currently owned as set forth 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, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/including ▇▇▇▇ ▇. ▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some at the 2006 Annual Meeting of the persons identified on the Group 13D as Shareholders and each subsequent annual meeting of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) shareholders with respect to which the Board has nominated ▇▇▇▇ ▇. ▇▇▇▇, respectively;
(d) seek to call, or to request the call of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any securities meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this AgreementCompany;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(ive) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any material assets or businesses, of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any of their respective securities (each, an “Extraordinary Transaction”), other governmental agency or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect disclosure to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a journalist, member of the Company’s current media or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4analyst) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to obtain any waiver, or consent under, or any amendment of, any of the Boardprovisions of Section 4(e) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the JDL Group or their Affiliates or Associates) to obtain any waiver, consent under, or any amendment of, any provision of this Agreement;
(g) directly or indirectly purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of, any Common Stock or other securities issued by the Company, its managementor any securities convertible into or exchangeable for Common Stock or any other equity securities of the Company;
(h) enter into any arrangements, policies understandings or affairsagreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing;
(i) request the Company or its securities advisers, directly or assets indirectly, to amend or this Agreement that is inconsistent with waive any of the provisions of this Agreement;
(ixj) enter into any discussions, negotiations, agreements take or understandings with any Third Party with respect to any of the foregoing, cause or advise, assist, knowingly encourage or seek to persuade any Third Party induce others to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(xk) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of It is understood and agreed that this Section 2(a) Agreement shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇. ▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or from engaging in any way limit any actions that may be taken by lawful act in the Nominees or their Replacements acting solely exercise of his fiduciary duty as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Company.
Appears in 1 contract
Sources: Shareholder Agreement (Quipp Inc)
Standstill. (a) Each Except as provided in Section 6.1(b), and subject to Section 6.1(c), during the Standstill Period, none of Rhône or its Affiliates (including, for the avoidance of doubt, the Initial Holders) shall, without the prior written consent of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of Board (excluding the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Rhône Directors), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersindirectly:
(i) makeeffect or seek, engage in, offer or in propose (whether publicly or otherwise) to effect or announce any way intention to effect or cause or participate in, directly (A) any acquisition of Common Stock or indirectlyCommon Stock Equivalents if, as a result of any such acquisition, any of Rhône or its Affiliates (including, for the avoidance of doubt, the Initial Holders), individually or as part of a “group” (within the meaning of Section 13(d) of the Exchange Act), would become the beneficial owner (as defined in Rule 13(d) of the Exchange Act, except that the applicable Person(s) or group shall be deemed to have “beneficial ownership” of all shares that such Person(s) or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), of more than 34.99% of the total voting power of the Voting Stock, (B) any tender or exchange offer or merger involving the Company or (C) any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange ActSEC) or written consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Voting Stock of the Company”) for the election of individuals , in each case in order to elect directors to the Board or to approve shareholder proposals, 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 any solicitation of all proxies to elect any Rhône Director who has not been nominated by the Board and/or elected by the stockholders of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseCompany);, or
(ii) form, join, encourage, influence, advise form or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(313(d) of the Exchange Act for purposes of this AgreementAct), any if such groupgroup would, as a “Section result, become the beneficial owner (as defined in Rule 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over except that such group shall be deemed to have “beneficial ownership” of all shares that such group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), of more than 19.9934.99% of the total voting power of the Voting Stock.
(b) Section 6.1(a) shall not prevent any direct or indirect acquisition (or participation in a “group” consisting solely of Rhône and any of its Affiliates with resulting beneficial ownership of more than 34.99% of the aggregate total voting power of the Voting Stock (determined in accordance with Section 6.1(a)(ii)) by Rhône or any of its Affiliates during the Standstill Period of (i) the Exchange Stock, (ii) the shares of Common Stock outstanding at such time or Series A Preferred Stock issuable or issued upon the exercise of the Warrants or in connection with the exercise of any preemptive rights under Section 5.6 of the Warrant Agreement, (Biii) any Qualifying Employee 7 Stock issued to the extent none of the PW Group Shareholders, the Luxor Shareholders Rhône Directors or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect any Common Stock or seek Common Stock Equivalents acquired pursuant to effect a Permitted Transaction.
(includingc) If at any time during the term of this Agreement (i) the Company fails to nominate any Rhône Director or to vote any of its proxies in favor of any Rhône Director, without limitation(ii) the stockholders of the Company fail to elect any Rhône Director, by entering into (iii) a “change in control”, “change of control” or similar concept shall have occurred under any discussionsindenture, negotiationsloan agreement, agreements or understandings whether or not legally enforceable with any person)mortgage, offer or propose to effectdeed of trust, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution contract or other extraordinary transaction involving agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or joint ventures or any of their respective securities properties may be bound (each, an “Extraordinary Transaction”other than as a result of Rhône breaching its obligations under Section 6.1(a), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (Biv) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Rhône and its Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) 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 limitationfor the avoidance of doubt, any put the Initial Holders), individually 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 as part of its value from a decline in “group” (within the market price or value meaning of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(413(d) of the Exchange Act;
), are the beneficial owner (viiias defined in Rule 13(d) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoingExchange Act, except that the applicable Person(s) or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) group shall not be deemed to prohibit any have “beneficial ownership” of all shares that such Person(s) or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time) of less than 20% of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of outstanding Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (includingon a fully-diluted basis, without limitation, voting on any matter submitted for consideration by then the Board, participating restrictions set forth in deliberations or discussions of the Board and making suggestions or raising issues to the BoardSection 6.1(a) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)permanently terminate.
Appears in 1 contract
Sources: Exchange Agreement (Quiksilver Inc)
Standstill. (a) Each From and after the Closing until the fourth (4th) anniversary of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 Closing Date (the “Covered Initial Standstill Period”), except as expressly set forth in this Agreementunless otherwise approved, neither it nor any of its Affiliates or Associates willan exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and it will shall cause each of its Affiliates and Associates not to, directly or indirectly in any mannerindirectly, alone or in concert with others:any other Person, except as otherwise expressly set forth in this Section 4.1(a):
(i) makeoffer to acquire or agree to acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing, engage inexcept (A) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations, (B) acquisitions of Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), or (C) acquisitions or purchases of Company Shares pursuant to and in accordance with Article VI;
(ii) acquire, offer to acquire or agree to acquire any assets of the Company or any of its Subsidiaries that are material to the operations, financial condition or prospects of the Company and its Subsidiaries, taken as a whole;
(iii) induce or attempt to induce any third party (it being understood that a “third party” shall exclude Affiliates of Theta, which shall be subject to the restrictions under clause (i) above) to propose or offer to acquire Beneficial Ownership of Company Shares (other than the Company Shares held by the Shareholder Group as and to the extent permitted in accordance with Section 4.2);
(iv) seek the election, appointment or removal of any Directors or seek a change in the composition or size of the Board (in each case, other than through the appointment or removal of any Shareholder Designee);
(v) except (A) as otherwise required by applicable Law or (B) in case of a proposed Directed Issue, make or cause to be made any press release or similar public announcement or public communication relating to the way it intends to, or does, vote its Company Shares at any meeting of the shareholders of the Company or in connection with any action by written consent at or in which Company Shares are entitled to vote;
(vi) deposit any Company Shares into a voting trust or subject any Company Shares to any proxy, arrangement or agreement with respect to the voting of such any Company Shares or other agreement having a similar effect (provided that nothing in this clause (vi) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion, or (B) restricting the rights of Theta under Section 4.2);
(vii) other than as permitted under the foregoing clause (v), initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or in any way participate in, directly or indirectly, any “solicitation” solicitation of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person Person with respect to the voting of, any Voting Securities (provided that nothing in this clause (vii) shall be interpreted as preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion);
(viii) publicly call or publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders (other than pursuant to Section 4.2(e));
(ix) make any securities public statement or disclosure inconsistent with the foregoing;
(x) assist, advise, induce or attempt to induce (or provide any confidential information of the Company or any securities convertible of its Subsidiaries for the purpose of assisting, advising, inducing or exchangeable into attempting to induce) any third party to take, or exercisable for take any such securities (collectivelyaffirmative action to do, “securities any of the Company”foregoing; or
(xi) for propose or seek an amendment or waiver of any of the election provisions of individuals this Section 4.1(a).
(b) From and after the Initial Standstill Period to the Board or date that the Shareholder Group ceases to approve shareholder proposalsBeneficially Own any Company Class B Shares (the “Subsequent Standstill Period”), unless otherwise approved, or become an exemption or waiver is otherwise approved, by the Unaffiliated Directors, Theta shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as otherwise expressly set forth in this Section 4.1(b):
(i) seek the election, appointment or removal of any Directors or seek a “participant” change in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined composition or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of the nominees size of the Board at any shareholder meeting) (in each case, other than through the appointment or make or be the proponent removal of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseShareholder Designee);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any Shares into a voting trust or similar arrangement, or subject any securities of the Company Shares to any proxy, arrangement or agreement with respect to the voting thereof, except as expressly set forth of such any Company Shares or other agreement having a similar effect with respect to any matter on which the Company Class B Shares are not entitled to vote pursuant to Section 10 of the Articles of Association (provided that nothing in this Agreementclause (iii) shall be interpreted as (A) preventing Theta and its Affiliates from voting its Company Shares, whether in person or by proxy, as it determines in its sole discretion or (B) restricting the rights of Theta under Section 4.2);
(iii) acquireinitiate, offer propose or propose to acquireotherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or agree to acquirein any way participate in, directly or indirectly, whether by purchaseany solicitation of proxies to vote, tender or exchange offer, through seek to influence any Person with respect to the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwisevoting of, any securities of the Company or any rights decoupled from the underlying securities of the Company that Voting Securities with respect to (A) any matter on which the Company Class B Shares are not entitled to the extent any vote pursuant to Section 10 of the PW Group ShareholdersArticles of Association, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) any proposal by Theta or its Affiliates to the extent none effect a Company Change of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in Control (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to in this clause (iv) shall be sold to the extent such personsinterpreted as preventing Theta and its Affiliates from voting its Company Shares, collectively with their Affiliates and Associateswhether in person or by proxy, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companyit determines in its sole discretion), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect publicly call or seek publicly requisition a call for any general, special or extraordinary meeting of the Company’s shareholders with respect to effect (including, without limitation, by entering into A) any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving matter on which the Company or any Class B Shares are not entitled to vote pursuant to Section 10 of its subsidiaries or joint ventures or any the Articles of their respective securities Association (each, an “Extraordinary Transaction”other than pursuant to Section 4.2(e)), or (B) any proposal by Theta or its Affiliates to effect a Company Change of Control; or
(v) make any public statement or disclosure inconsistent with respect the foregoing. Notwithstanding anything to the contrary in the foregoing, during the Subsequent Standstill Period the Shareholder Group shall be permitted to offer to acquire, agree to acquire or acquire Beneficial Ownership of any Company Shares in addition to any Company Class B Shares acquired at Closing in the following circumstances (A) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations, (B) acquisitions of Company Ordinary Shares or Company ADSs up to the Shareholder Ownership Cap if such Company Ordinary Shares or Company ADSs are converted to Company Class B Shares in accordance with Section 5.2(b), (C) acquisitions or purchases of Company Shares pursuant to and in accordance with Article VI and (D) in connection with an Extraordinary Transactionoffer to acquire all of the outstanding Capital Stock of the Company, including the taking of any preparatory measures in connection with such offer, including obtaining undertakings from the Company’s shareholders to sell their shares in connection with such offer (such offer together with any preparatory measures, a “Shareholder Group Tender Offer”); provided, that Theta and its Affiliates shall have consulted with the Unaffiliated Directors at least twenty (20) Business Days prior to making such Shareholder Group Tender Offer. Upon the making of a Shareholder Group Tender Offer, the restrictions set forth in Section 4.1(b) shall be suspended until such time that the Shareholder Group Tender Offer is either withdrawn or completed. In the event that (i) a majority of Unaffiliated Directors recommend the Shareholder Group Tender Offer or (ii) following completion of such Shareholder Group Tender Offer, the Shareholder Group holds two thirds of the then-outstanding Voting Securities, then Section 4.1(b) shall automatically terminate upon completion of the Shareholder Group Tender Offer.
(c) If, at any time during the Initial Standstill Period or the Subsequent Standstill Period, (i) the Company enters into definitive documentation providing for a transaction that, if consummated, would constitute a Company Change of Control; (ii) the Board publicly announces its determination that (A) it will sell or dispose of, or has commenced a process by which it proposes to sell or dispose of, the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, (B) will consider offers or proposals for a transaction that, if consummated, would result in a Company Change of Control, or (C) the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, is for sale; or (iii) a tender, takeover, exchange or similar offer that, if consummated, would constitute a Company Change of Control is commenced or the subject of an announcement of a firm intention to be made or commenced by any Person or group of Persons acting in concert and the Board either (x) publicly recommends that shareholders of the Company tender their shares of the Company to the Person or group of Persons acting in concert making such offer or (y) fails to recommend that the shareholders of the Company reject such offer, in each case within ten (10) Business Days after the date of commencement or posting of such offer, then, in any such case, the provisions of Section 4.1(a) and Section 4.1(b) shall terminate immediately and all other provisions of this Agreement shall remain in full force and effect; provided, however, that this clause shall not if, (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) 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” transactionx) with respect to any security clause (other than a broad-based market basket i) of this sentence, such transaction is terminated without being consummated, (y) with respect to clause (ii) of this sentence, the Board has publicly announced that it has rescinded such determination or index(z) with respect to clause (iii) of this sentence, such offer or similar transaction is withdrawn, terminated or expires without being consummated or if the Board publicly recommends that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities shareholders of the Company reject such offer, then, in any such case all provisions of Section 4.1 previously terminated shall be reinstated and shall be in full force and effect in accordance with their terms from and after the date of such termination, public announcement, withdrawal or expiration, as the case may be; provided further, that such reinstatement shall not prevent Theta or any of its Affiliates from continuing to pursue any activities described in this Section 4.1(c) that were definitively commenced after the date of such termination, but at or prior to the date of such reinstatement.
(it being understood d) Notwithstanding anything to the contrary in this Section 4.1, nothing herein shall prohibit or prevent Theta or any of its Affiliates from acquiring securities of, or from entering into any merger or other business combination with, another Person that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell Beneficially Owns any Company Shares; provided, however, that (i) such other Person shall have acquired such Company Shares or otherwise dispose of or unwind call option, swap or hedging positions they may have as other securities other than in contemplation of the date hereof relating to Theta or any of its Affiliates acquiring the securities of the Company)of, or entering into any such merger or other business combination with, such Person;
(viii) (A) call or seek to call, alone or in concert with others, any meeting the Beneficial Ownership of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list such Company Shares or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code securities by such other Person shall not be a primary reason for Theta or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its Affiliates acquiring the securities of, or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter entering into any discussionssuch merger or other business combination with, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal yearother Person; and (iii) vote for “say on pay” resolutions recommended by the Board. At combined Beneficial Ownership of such Company Shares of Theta or any subsequent special shareholders’ meeting (of its Affiliates entering into the business combination and such other Person would not result in Theta or adjournments any of its Affiliates or postponements thereof) during the Covered Period each of the PW Group Shareholderssuch other Person being required, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election pursuant to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the BoardFinnish Securities Market Act, to commence a mandatory tender offer to acquire additional Company Shares.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
Appears in 1 contract
Sources: Shareholders Agreement (Terex Corp)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇J▇▇▇ Shareholders solely on behalf agrees that, during the Standstill Period (as defined below) (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates hereby severally and a majority of the Company’s directors not jointly agrees that from including the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Designees), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided, that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) (collectively (with J▇▇▇) and it will cause each of its Affiliates and Associates individually, the “J▇▇▇ Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv14a1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to advise, encourage or influence any person other than any J▇▇▇ Affiliate with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder meeting) stockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), except in all cases as expressly permitted by this Agreement;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other thanexcluding, with respect to PW Group/Luxor/▇▇▇for the avoidance of doubt, any group composed solely of J▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereofJ▇▇▇ Affiliates) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereofthereof (including by granting any proxy, consent or other authority to vote), except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group)group, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇would result in J▇▇▇ Shareholders remain members of a Section 13(d) Group (together with any of the others, would result in the PW Group/Luxor/▇▇▇J▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any individual or entity that would be deemed to be part of a “group” (as such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a term is defined in Section 13(d13(d)(3) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act) with J▇▇▇ or any J▇▇▇ Affiliate (together with the J▇▇▇ Affiliates the “13D Group”)) owning, over more than 19.99% in the aggregate controlling or otherwise having any beneficial or other ownership interest (including, for purpose of the this calculation under this Section 2(a)(iii), all shares of Common Stock outstanding at which such time or (B) person has the right to acquire pursuant to the extent none exercise of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group any rights in connection with any securities or any agreement, regardless of the otherswhen such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, would result in (1) with respect contract or instrument primarily related to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 price of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2Stock) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over 10% or more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided provided, that nothing herein will require Common Stock to be sold to the extent such personsthat J▇▇▇ and the 13D Group, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely clause (iii) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as (it being understood that J▇▇▇ shall notify the Company promptly in the event (and in no less than three (3) business days after) J▇▇▇ (together with the 13D Group) owns, controls or otherwise has any such beneficial or other ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely percentage of shares or a greater amount based on the number of outstanding shares of Common Stock as a result of further corporate actions taken most recently disclosed by the CompanyCompany on the cover of a publicly filed Form 10-K or Form 10-Q or otherwise communicated in writing by the Company to J▇▇▇), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by J▇▇▇ or any J▇▇▇ Affiliate to any person or entity not a party to this Agreement (a “Third Party”) that, to JANA’s or the J▇▇▇ Affiliate’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its affiliates and associates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, schemesale of all or substantially all assets or sale, spinoff, splitoff or other similar separation of one or more business units, scheme of arrangement, plan of arrangement or other business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”), or make encourage, initiate or support any public statement with respect to an Extraordinary Transactionother third party in any such activity; provided, however, that this clause (v) shall not (A) preclude the tender (or failure to tender) by any PW Group/Luxor/▇▇▇J▇▇▇ Shareholders or an a J▇▇▇ Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote for or against any transaction by any PW Group/Luxor/▇▇▇J▇▇▇ Shareholders or an a J▇▇▇ Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(vvi) 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, including any put or call option or “swap” transaction) transaction with respect to any security (other than a broad-broad based market basket or index)) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, request the calling of any meeting of shareholdersstockholders, including by written action, consent; (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, ; (C) seek the removal of any member of the Board, ; (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written action, consent; (E) conduct a referendum of shareholders stockholders; (F) present at any annual meeting or any special meeting of the Company’s stockholders; or (FG) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(viiviii) except as set forth herein, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, ; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles Restated Certificate of Incorporation or Bylawsthe by-laws, or other actions actions, that may impede or facilitate the acquisition of control of the Company by any person, ; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or slanders the Company or Affiliates thereof or any of their respective current or former officers, directors or employees, provided that J▇▇▇ will, subject to the Confidentiality Agreement if executed, be permitted to make objective statements that reflect JANA’s view, as stockholders, with respect to factual matters concerning specific acts or determinations of the Company occurring after the date of this Agreement;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceedings against or involving the Company or any of its current or former directors or officers (including derivative actions), other than an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 8; or
(xxiii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (and the documents referenced in Section 1(c) or any of the PW Group/Luxor/▇▇▇successor documents shall not prohibit) J▇▇▇ Shareholders or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with regarding or privately advocating for or against any of the matters described in this Section 2(a) with, or from privately requesting a waiver of any of the foregoing provisions of this Section 2(a) from, the Company’s directorsdirectors or officers, officers or advisors so long as such communications communications, advocacy or requests are in accordance with the Confidentiality Agreement, if executed, and are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, advocacy or requests.
(b) Each of The Company agrees that, during the PW Group Shareholders solely on behalf of itself Standstill Period it shall not, and its respective Affiliates and Associates, shall cause each of its Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of SEC under the Exchange Act; provided, that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”), not to, directly or indirectly, in any manner, alone or in concert with others, make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or s▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders or any J▇▇▇ Affiliate or any of their respective current or former Representatives, provided that the Company will be permitted to make objective statements that reflect the Company’s view with respect to factual matters concerning specific acts or determinations of J▇▇▇ or any J▇▇▇ Affiliate occurring after the date of this Agreement. For the avoidance of doubt, a public statement or announcement shall cause all shares of Common Stock beneficially owned, directly only be deemed to be made by the Company if made by either (i) an executive officer or indirectly, by it as member of the applicable record date to be present for quorum purposes and to be voted in favor Board or (ii) an employee or representative of the election Company authorized to make such statement or announcement on behalf of the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the BoardCompany.
(c) Nothing in For purposes of this Section 2 shall prohibit Agreement the terms “person” or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).“
Appears in 1 contract
Sources: Cooperation Agreement (Tiffany & Co)
Standstill. (ai) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees The Buyers agree that from and after the date hereof until the termination of this Agreement in accordance with Section 5 Agreement, the Buyers shall not, and shall not permit any of their affiliates or associates (collectively, the “Covered PeriodBuyer Group”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, to directly or indirectly, unless in any “solicitation” such case specifically invited in writing to do so by the board of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities directors of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, the “securities of the CompanyCompany Board”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);):
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to for a period of one year from the extent any of the PW Group ShareholdersClosing, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the othersinitiate, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person consent to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof taking of any securities stockholder action by consent without a meeting pursuant to Section 228 of the Company into any tender Delaware General Corporation Law (unless initiated or exchange offer, or vote not opposed by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation onfor a period of one year from the Closing, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive (or make amendments its directors, officers, employees or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly requestagents), directly or indirectly, to amend or waive any amendment provisions of Section 6(a) or of this Agreement (including this Section 6(a)(i)(B)), or otherwise seek any modification to or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Buyer Group/Luxor/▇▇▇▇▇▇ Shareholders ’s agreements or their directorsobligations under Section 6(a) of this Agreement; or
(C) for a period of one year from the Closing, officersencourage or render advice to or make any recommendation or proposal to any person to engage in any of the actions covered by this Section 6(a) (including this clause(C)).
(ii) If any time, partnerswithout the consent of the Company Board, employeesthe Buyer Group’s Beneficial Ownership of Common Stock and economic exposure pursuant to contracts in the Common Stock exceeds 24% of the issued and outstanding Common Stock (other than as a result of the Company’s net purchases of Common Stock exceeding its issuance for the period subsequent to the Closing to the point in time in question), members or agents the provisions of Section 203 (acting taken in such capacityits entirety) from communicating privately shall govern with respect to each member of the Buyer Group engaging in any “business combination” with the Company’s directors, officers or advisors so long as if the transaction that results in such excess share ownership had caused the Buyers to become “interested stockholders” under Section 203, as such communications terms are not intended to, and would not reasonably be expected to, require any public disclosure of such communicationsdefined in Section 203.
(biii) Each For a period of one year from the Closing, each member of the PW Buyer Group Shareholders solely on behalf shall agree to give to the Company: (A) one business day prior review of itself and its respective Affiliates and Associatesany proposed press release, each public announcement or of any filing with the SEC relating to the Company by any member of the Luxor Shareholders solely on behalf of itself Buyer Group (but the Company shall have no right to comment and its respective Affiliates shall not make any public statements in response in the interim unless required by law, in which event the notice period shall thereupon terminate), and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees (B) seven business days advance notice prior to cause all shares soliciting other holders of Common Stock beneficially owned to take stockholder action with respect to a proposed election of director, or participating in a business combination with the Company (but the Company shall have no right to comment and shall not make any public statements in response in the interim unless required by it as of law, in which event the record date for notice period shall thereupon terminate). During such seven day period, the 2014 Annual Meeting Company will not adopt a shareholder rights plan or amend any charter or bylaw provisions, or take any other corporate action, to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardrestrict shareholder rights.
(civ) Nothing The Company and Buyers agree that the Company, in this Section 2 shall prohibit addition to any other remedy to which it may be entitled in law or in any way limit any actions that may equity, shall be taken by the Nominees entitled to an injunction or their Replacements acting solely as a director injunctions to prevent breaches of the Company (includingprovisions of Section 6(a) of this Agreement and to compel specific performance of Section 6(a) of this Agreement, without limitation, voting on any matter submitted the need for consideration by the Board, participating in deliberations or discussions proof of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)actual damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lear Corp)
Standstill. (a) Each of In the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the event ▇▇. ▇▇▇▇▇▇▇▇▇ Shareholders solely on behalf joins the Board at the request of itself and its respective Affiliates and Associates hereby severally and not jointly the ▇. ▇. ▇▇▇▇ Parties, each of the ▇. ▇. ▇▇▇▇ Parties agrees that from that, during the date hereof until the termination term of this Agreement and provided ▇▇. ▇▇▇▇▇▇▇▇▇ remains a member of the Board (unless requested in accordance with Section 5 (writing by the “Covered Period”Company, acting through a resolution of a majority of the Company’s Board not including ▇▇. ▇▇▇▇▇▇▇▇▇), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willwill not, and it will cause each of its Affiliates (provided that no portfolio company controlled by, or under common control with, any of the ▇. ▇. ▇▇▇▇ Parties will be deemed an “Affiliate” so long as such portfolio company (A) has not had discussions with the ▇. ▇. ▇▇▇▇ Parties regarding any of the restricted matters set forth in this Section 6(a) regarding the Company, (B) has not received from the ▇. ▇. ▇▇▇▇ Parties or ▇▇. ▇▇▇▇▇▇▇▇▇ information concerning the Company or its business, and Associates (C) is not acting at the request of, in coordination with or on behalf of the ▇. ▇. ▇▇▇▇ Parties or ▇▇. ▇▇▇▇▇▇▇▇▇), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, make or engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange ActSEC) or consents to vote, vote or seek to advise, advise or encourage or knowingly influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseAct);
(ii) form, join, encourage, influence, knowingly influence or advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their who are not Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangementtrust, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), including through any swap transaction where beneficial ownership is acquired, any securities of the Company that would result in the ▇. ▇. ▇▇▇▇ Parties (together with the Affiliates) having an aggregate beneficial ownership of 10% or more of the Common Shares outstanding as at such time (as adjusted for any stock splits, reclassifications, combinations, stock dividends or similar actions by the Company);
(iv) other than through open market trades with unknown counterparties, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any the securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and held by the ▇. ▇. ▇▇▇▇ Shareholders remain members of Parties or any Affiliate to any person or entity not a Section 13(d(A) Group with any of the othersparty to this agreement or Affiliate thereof, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none member of the PW Group Shareholders, the Luxor Shareholders Board or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d(C) Group with any officer of the others, Company (any such person or entity being a “Third Party”) that would knowingly result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) such Third Party having an aggregate beneficial ownership, as determined in accordance with Rule 13d-3 ownership more than 4.9% of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock Shares outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be except in a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken transaction approved by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationBoard;
(ivv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall will not (A) preclude the tender (or action not to tender) by any PW Group/Luxor/the ▇. ▇. ▇▇▇▇ Shareholders Parties or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group/Luxor/the ▇. ▇. ▇▇▇▇ Shareholders Parties or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company)Transaction;
(vi) (A) call or seek to call, alone or in concert with others, call any meeting of shareholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders shareholders, or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwiselist;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, controlling or changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term terms of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles articles of Incorporation incorporation or Bylawsbylaws, or other actions actions, that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, exchange or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged the Board, the Company or Affiliates thereof and any of its current or former officers or directors;
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement Board that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, request any amendment or waiver of the foregoing. .
(a) The foregoing provisions of this Section 2(a) shall 6 will not be deemed to prohibit any of the PW Group/Luxor/▇. ▇. ▇▇▇▇ Shareholders Parties or their its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, directors or officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as or communicating privately with the Company’s auditors for shareholders, so long as such communications with shareholders do not breach the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each provisions of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)6.
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except Except as expressly set forth in this Agreement, neither it nor any from the Effective Date until the earlier of (a) 12 months from the Effective Date and (b) 10 calendar days prior to the notice deadline under the Company’s By-laws (the “Bylaws”) for the nomination of director candidates for election to the Board at the Company’s 2025 Annual Meeting of Stockholders (such period, the “Cooperation Period”), each Sophis Group Party shall not, and shall cause its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not toits Affiliates’ respective Representatives (collectively, directly or indirectly in any mannerwith the Sophis Group Parties, alone or in concert with others:
(ithe “Restricted Persons”) make, engage in, or in any way participate into not, directly or indirectly, any “solicitation” of proxies (as such terms are used in without the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to voteprior written consent, invitation, or seek to advise, encourage or influence any person with respect to the voting of any securities authorization of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals(in their respective sole discretions):
a. acquire, or become a “participant” in any contested “solicitation” for the election of directors with respect offer, or agree 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act acquire, by purchase or otherwise);
(ii) form, join, encourage, influence, advise or direct any third party in any way participate in any “group” the acquisition of record or beneficial ownership (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes Act) of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect economic exposure to any securities of the Company entitled to vote in the election of directors (“Voting Securities”) or otherwise engage in any manner agree, attempt, seek swap or propose to deposit any securities of the Company in any voting trust or similar arrangementhedging transaction, or subject other derivative agreement of any securities of the Company to any arrangement or agreement nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the voting thereofSophis Group Parties, together with their Affiliates, having beneficial ownership of more than 14.0% of the Voting Securities outstanding at such time;
b. alone or in concert with any one or more persons, (A) call or seek to call (publicly or otherwise) a meeting of the Company’s stockholders or act by written consent in lieu of a meeting (or call or seek to call for the setting of a record date therefor), (B) seek election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in this AgreementSection 5, (C) make or be the proponent of any stockholder proposal to the Company, the Board or any of its committees, (D) seek (including through any “withhold” or similar campaign) the removal of any member of the Board, or (E) conduct a referendum of stockholders of the Company;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate c. make any request for stock list materials or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities books and records of the Company or any rights decoupled from of its subsidiaries under Section 220 of the underlying securities Delaware General Corporation Law (the “DGCL”) or any other statutory or regulatory provision providing for stockholder access to books or records of the Company that (A) to the extent or any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with its subsidiaries;
d. engage in any of the others, would result “solicitation” (as such term is defined in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over ) of one or more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time proxies or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) consents with respect to the PW Group Shareholders (together with their Affiliates and Associates and election or removal of one or more directors of the Company or any other persons with whom they may be matter or proposal relating to the Company or become a Section 13(d) Group) having beneficial ownership, “participant” (as determined such term is defined in accordance with Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A under the Exchange Act, over more than 8.5% ) in the aggregate any such solicitation of the shares of Common Stock outstanding at such time, (2) with respect proxies or consents;
e. make or submit to the Luxor Shareholders Company or any of its Affiliates any proposal or offer for (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over or without one or more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Companyconditions), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, either alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangementsale of all or substantially all assets, business combination, recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other similar extraordinary transaction involving the Company or any one or more of its direct or indirect subsidiaries or and joint ventures or any of their respective securities or assets (each, an “Extraordinary Transaction”), either publicly or make any in a manner that would reasonably be expected to require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated disclosure by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company Restricted Persons (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell foregoing shall not restrict the Restricted Persons from tendering shares, receiving consideration or other payment for shares, or otherwise dispose of or unwind call option, swap or hedging positions they may have participating in any Extraordinary Transaction on the same basis as of the date hereof relating to securities other stockholders of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) f. take any action in support of of, make any public proposal or public comment or announcement or make any proposal other public disclosure of any kind or request that constitutes: speaking to any members of the media, whether on the record or off the record or on background, with respect to (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change in the number or term identity of directors of the Company or to fill the filling of any vacancies vacancy on the Board, except Board other than as set forth hereinprovided under Section 5 of this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices capital allocation policy or dividend policy of the Company, (C) any other material change in to the Board or the Company’s management, business management or corporate or governance structure, including the separation of the Chair and CEO roles, (D) seeking to have the Company waive any waiver, amendment or make amendments or modifications modification to the Company’s Articles Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company Company’s Common Stock, par value $0.0001 per share (the “Common Stock”) to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, or (G) the Company’s business, operational or financial performance or results, plans, objectives, policies or strategy or any Extraordinary Transactions;
g. knowingly encourage or advise any party or knowingly assist any other party in encouraging or advising any other person with respect to (viiiA) make the giving or withholding of any public disclosureproxy relating to, announcement or statement regarding other authority to vote, any intentVoting Securities, purpose, plan or proposal (B) conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board), other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter; h. form, join, or act in concert with any Group with respect to any Voting Securities, other than solely with Affiliates of the Sophis Group Parties with respect to Voting Securities now or hereafter owned by them;
i. enter into any voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement, (B) solely between or among any two or more of the Sophis Group Parties and their Affiliates, or (C) granting any proxy in any solicitation approved by the Board;
j. engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security of the Company (other than any index fund, exchange-traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of any of the Company’s securities and would, its managementin the aggregate or individually, policies result in the Sophis Group Parties ceasing to have a net long position in the Company; k. sell, offer or affairsagree to sell, directly or indirectly, through swap or hedging transactions or otherwise, all or substantially all, voting rights decoupled from the underlying Voting Securities held by a Restricted Person to any other person;
l. institute, solicit or join as a party any litigation, arbitration or other proceeding against or involving the Company, any of its securities subsidiaries or assets any of its or this Agreement their respective current or former directors or officers (including derivative actions); provided, however, that is inconsistent with for the provisions avoidance of doubt, the foregoing shall not prevent any Sophis Group Party from (A) bringing litigation against the Company to enforce any provision of this Agreement, (B) making any counterclaim with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against any Sophis Group Party, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights, or (E) responding to or complying with validly issued legal process;
m. enter into any negotiation, agreement, arrangement, or understanding (ixwhether written or oral) with any party to take any action that the Restricted Persons are prohibited from taking pursuant to this section;
n. make any request or submit any proposal to amend or waive any of the terms of this Agreement (including this subclause), in each case publicly or that would reasonably be expected to result in a public announcement or disclosure of such request or proposal;
o. enter into any discussions, negotiations, agreements or understandings with any Third Party person with respect to any of action the foregoingSophis Group Parties are prohibited from taking pursuant to this section, or advise, assist, knowingly encourage or seek to persuade any Third Party person to take any action or make any statement with respect to any of the foregoingsuch action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; p. publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of this Agreement; or
(x) publicly requestq. take any action challenging the validity or enforceability of this Section 3 or this Agreement. Notwithstanding anything in this Agreement to the contrary, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) 3 shall not be deemed to prohibit any of restrict the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents Restricted Persons from: (acting in such capacityi) from communicating privately with the Board or any of the Company’s directorsofficers regarding any matter, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
, (bii) Each communicating privately with stockholders of the PW Group Shareholders solely on behalf Company and others in a manner that does not otherwise violate this Section 3 or Section 10 nor made with an intent to circumvent any of itself and its respective Affiliates and Associatesthe restrictions listed in this Section 3, (iii) taking any action or making any public disclosure necessary to comply with any legal process, or (iv) taking any actions required by the terms of those certain Investment Advisory Agreements, dated October 4, 2023, between each of the Luxor Shareholders solely on behalf of itself ▇▇▇▇▇’▇ Drift LLC, and its respective Affiliates Messrs. ▇▇▇▇▇▇, ▇▇▇▇-▇▇▇▇▇ and Associates and each of the ▇▇▇▇▇▇▇▇ Shareholders solely on behalf of itself the one hand, and its respective Affiliates and Associates hereby severally and Sophis Investments LLC, on the other hand, so long as such action would not jointly agrees to cause all shares of Common Stock beneficially owned by it as otherwise be in violation of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor terms of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)3.
Appears in 1 contract
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from From the date hereof until the termination of this Agreement in accordance with Section 5 until 10 business days prior to the deadline for the submission of shareholder nominations of directors and business proposals for the 2020 Annual Meeting of Shareholders (such period, the “Covered Restricted Period”), except as expressly set forth in this Agreementnone of the Investors or their respective Affiliates, neither it nor any of its Affiliates Associates or Associates Family Members or their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their respective behalf will, and it will cause each of its Affiliates and Associates not toin any way, directly or indirectly (in any mannereach case, alone except as expressly permitted by this Agreement):
(a) with respect to Company or in concert with others:
the Voting Securities, (i) make, engage in, participate in or in any way participate in, directly or indirectly, encourage any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard SEC) of proxies or consents with respect to the exclusion set forth election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in Rule 14a-1(l)(2)(iv) the proxy rules of the Exchange ActSEC) in any such solicitation of proxies or consents to vote, or consents; (iii) seek to advise, encourage or influence any person Person with respect to the voting or disposition of any securities of the Company Voting Securities; or any securities convertible (iv) initiate, encourage or exchangeable into participate, directly or exercisable for any such securities (collectivelyindirectly, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitationvote no,” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act) (other than a “solicitationwithhold” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)similar campaign;
(iib) forminitiate, join, encourage, influence, advise propose or in any way participate in any otherwise “groupsolicit” (as such term is defined used in Section 13(d)(3) the proxy rules of the Exchange Act SEC) Company’s shareholders for purposes the approval of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectlyshareholder proposal, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject made pursuant to Rule 13e-3 14a-4 or Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(v) 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” transactionc) with respect to Company or the Voting Securities, (i) communicate with Company’s shareholders or others pursuant to Rule 14a-1(l)(2)(iv) pursuant to the Exchange Act; (ii) participate in, or take any security action pursuant to, or encourage any Person to take any action pursuant to, any type of “proxy access”; or (other than iii) conduct any nonbinding referendum or hold a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company)“shareholder forum”;
(vid) (Ai) call or seek to callseek, alone or in concert with others, any meeting of shareholderselection or appointment to, including by written action, (B) seek or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to nominate or propose the nomination of or recommend the nomination of, any candidate to, to the Board; or (iii) seek, except as set forth hereinalone or in concert with others, (C) seek or encourage any Person to seek, the removal of any member of the Board, ;
(Di) solicit consents from shareholders or otherwise act call or seek to act by written actioncall or initiate the convening of a special meeting of shareholders, (E) conduct or encourage any Person to call a referendum special meeting of shareholders shareholders; or (Fii) make a request for any shareholder list or other Company books or records;
(f) other than solely with other Affiliates of Engine who agree to be bound by the terms and recordsconditions of this Agreement with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 1600 13(d) of the California Corporations Code Exchange Act, with respect to any Voting Securities (other than any group comprised solely of Investors); (ii) deposit any Voting Securities into a voting trust, arrangement or otherwiseagreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement;
(viig) (i) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving any Investor and Company; (ii) solicit a third party to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Company, or publicly encourage, initiate or support any third party in making such an offer or proposal; or (iii) publicly comment on any proposal regarding any merger, acquisition, recapitalization, restructuring, disposition or other business combination with respect to Company by a third party prior to such proposal becoming public;
(h) make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board or Company, its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) take any action in support of of, or make any proposal or request that constitutes: (Ai) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, except as set forth herein, (B) any material change in changing or influencing the capitalization, stock repurchase programs and practices practices, capital allocation programs and practices, or dividend policy of the Company; (iii) controlling, (C) any other material change in the changing or influencing Company’s management, business or corporate structure, ; (Div) seeking to have the Company waive or make amendments or modifications to the Company’s Articles its articles of Incorporation incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, bylaws; (Ev) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (Fvi) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiij) make engage or use any public disclosure, announcement private investigations firm or statement regarding any intent, purpose, plan or proposal with respect other person to the Board, the Company, its management, policies or affairs, investigate any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as employees or use any report or findings or such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.firm or person;
(bk) Each publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of this Agreement;
(l) take any action challenging the validity or enforceability of this Section 8 unless the Company is challenging the validity or enforceability of this Section 8;
(m) sell, offer or agree to sell all or substantially all to any third party, through swap or hedging transactions, derivative agreements or otherwise, voting rights decoupled from the underlying Voting Securities held by the Investors;
(n) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the PW Group Shareholders solely on behalf Exchange Act, through swap or hedging transactions, or otherwise, any securities of itself Company or any rights decoupled from the underlying securities of Company that would result in the Investors in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest (including, for purpose of this calculation, all Voting Securities that such Person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and its respective Affiliates whether they are conditional and Associatesincluding economic ownership pursuant to a cash settled call option or other derivative security, each contract or instrument primarily related to the price of Voting Securities) of more than 9.9% of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each then-outstanding Voting Securities;
(o) other than through open market broker sale transactions where the identity of the purchaser is not known, in underwritten widely dispersed public offerings and in accordance with the Company’s ▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇▇ Shareholders policy, sell, offer or agree to sell, through swap or hedging transactions or otherwise, the securities of Company to any Person not a party to this Agreement (a “Third Party”) that, to Engine’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall cause all shares be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates, Associates and Family Members, owning, controlling or otherwise having any beneficial or other ownership interest of Common Stock beneficially owned, directly or indirectly, by it as more than 4.9% of the applicable record date to be present for quorum purposes then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, Associates and to be voted in favor Family Members, has a beneficial or other ownership interest of more than 4.9% of the election to the Board of those director nominees nominated for election then-outstanding Voting Securities, except in each case either (A) in a transaction approved by the Board or (B) to a third party who is entitled, and against following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) promulgated under the removal Exchange Act.; or
(p) other than with other Investors, have any discussions or communications, or enter into any agreements, understandings or arrangements (whether written or oral), with, or advise, finance, assist or encourage, any Person, in connection with any of any directors whose removal is not recommended the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to limit the exercise in good faith by the Board.
New Director (cor the Replacement Nominee, as applicable) Nothing of such person’s fiduciary duties solely in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely such person’s capacity as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating and in deliberations or discussions of the Board and making suggestions or raising issues to the Board) a manner consistent with his fiduciary duties as a director of the Company (it being understood such person’s and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)Engines’ obligations under this Agreement.
Appears in 1 contract
Standstill. (a) Each ▇▇▇▇ agrees that, during the Standstill Period (unless specifically requested in writing by the Company, acting through a resolution of a majority of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Company’s directors not including the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Directors), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) (collectively (with ▇▇▇▇) and it will cause each of its Affiliates and Associates individually, the “▇▇▇▇ Affiliates”), not to, directly or indirectly (including through any ▇▇▇▇ Directors), in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv14a1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to advise, encourage or influence any person other than any ▇▇▇▇ Affiliate with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder meeting) stockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), except in all cases as expressly permitted by this Agreement;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other thanexcluding, with respect to PW Group/Luxor/▇▇for the avoidance of doubt, any group composed solely of ▇▇▇▇ Shareholders, a Section 13(d) Group that includes all and ▇▇▇▇ Affiliates or some of the persons identified on group previously disclosed in the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof▇▇▇▇ 13D) with respect to any securities Securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities Securities of the Company in any voting trust or similar arrangement, or subject any securities Securities of the Company to any arrangement or agreement with respect to the voting thereofthereof (including by granting any proxy, consent or other authority to vote), except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group)group, through swap or hedging transactions or otherwise, any securities Securities of the Company or any rights decoupled from the underlying securities Securities of the Company that would result in ▇▇▇▇ (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and together with the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(dAffiliates) Group with owning, controlling or otherwise having any of the others, would result beneficial or other ownership interest in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over 14.9% or more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthat ▇▇▇▇ and the ▇▇▇▇ Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely clause (iii) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationStock;
(iv) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the Securities of the Company or any rights decoupled from the underlying Securities of the Company held by ▇▇▇▇ or any ▇▇▇▇ Affiliate to any person or entity not a party to this Agreement (a “Third Party”) that, to JANA’s or the ▇▇▇▇ Affiliate’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its affiliates and associates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, schemesale of all or substantially all assets, scheme of arrangement, plan of arrangement or other business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution liquidation or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”), or make encourage, initiate or support any public statement with respect to an Extraordinary Transactionother third party in any such activity; provided, however, that this clause (v) shall not (A) preclude the tender (or action not to tender) by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an a ▇▇▇▇ Affiliate or an Associate thereof of any securities Securities of the Company into any tender or exchange offer, offer or vote for or against any transaction by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an a ▇▇▇▇ Affiliate or Associate thereof of any securities Securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange ActTransaction;
(vvi) 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, including any put or call option or “swap” transaction) transaction with respect to any security (other than a broad-broad based market basket or index)) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities Securities of the Company);
(vivii) (A) call or seek to call, alone or in concert with others, request the calling of any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, (F) present at any annual meeting or any special meeting of the Company’s stockholders, or (FG) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code DGCL or otherwise;
(viiviii) except as set forth herein, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, ; (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, ; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles certificate of Incorporation incorporation or Bylawsthe by-laws, or other actions actions, that may impede or facilitate the acquisition of control of the Company by any person, ; (E) causing a class of securities Securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities Securities exchange, ; or (F) causing a class of securities Securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viiiix) make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or slanders the Company or Affiliates thereof or any of their respective current or former officers, directors or employees, provided that ▇▇▇▇ will, subject to the Confidentiality Agreement, be permitted to make objective statements that reflect JANA’s view, as a shareholder, with respect to factual matters concerning specific acts or determinations of the Company occurring after the date of this Agreement;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ixxi) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceedings against or involving the Company or any of its current or former directors or officers (including derivative actions), other than an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 8; or
(xxiii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (and the documents referenced in Section 1(d) or any of the PW Group/Luxor/▇▇successor documents shall not prohibit) ▇▇▇▇ Shareholders or their its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with regarding or privately advocating for or against any of the matters described in this Section 2(a) with, or from privately requesting a waiver of any of the foregoing provisions of this Section 2(a) from, the Company’s directorsdirectors or officers, officers or advisors so long as such communications or requests are in accordance with the Confidentiality Agreement and are not intended to, and would not reasonably be expected to, require any public disclosure of such communicationscommunications or requests.
(b) Each of The Company agrees that, during the PW Group Shareholders solely on behalf of itself Standstill Period it shall not, and its respective Affiliates and Associates, shall cause each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) not to, directly or indirectly, in any manner, alone or in concert with others, make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or ▇▇▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (▇▇▇▇ or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇ Affiliates or any of their respective current or former Representatives, provided that the Company will be permitted to make objective statements that reflect the Company’s view with respect to factual matters concerning specific acts or determinations of ▇▇▇▇ Shareholders shall cause all shares or the ▇▇▇▇ Affiliates (or their respective current or former representatives) occurring after the date of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Boardthis Agreement.
(c) Nothing in For purposes of this Section 2 Agreement the terms “person” or “persons” shall prohibit mean any individual, corporation (including not-for-profit), general or in limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any way limit any actions that may be taken by the Nominees kind or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof)nature.
Appears in 1 contract
Standstill. (a) Each of So long as the PW Group Shareholders solely on behalf of itself Company has complied and is complying with its respective Affiliates and Associatesobligations set forth in this Agreement, each of during the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of Standstill Period, the ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholders solely on behalf of itself Group and its respective Affiliates and Associates hereby severally and not jointly agrees that from Affiliates, will not, without the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities prior written consent of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);its Board:
(iia) formAcquire, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attemptoffer, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the acquisition of control of another personExchange Act), by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, any securities Voting Stock of the Company or direct or indirect rights to acquire any Voting Stock of the Company, or any assets of the Company or any rights decoupled from Subsidiary or division of the underlying securities Company, provided, however, that the ▇▇▇▇▇ ▇▇▇▇▇▇ Group may acquire in one or more transactions an aggregate number of shares of Voting Stock that when combined with all other holdings equals but does not exceed the Permitted Amount, and provided further, that any shares of Voting Stock held by the Independent Designee shall not be aggregated with the holdings of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group solely as a result of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates Group entering into this Agreement and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationoperation hereof;
(ivb) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate inMake, or in any way assist participate, directly or facilitate indirectly, in any other “solicitation” of “proxies” to vote (as such terms are used in the rules of the SEC), or seek to advise or influence any person or entity with respect to effect the voting of any Voting Stock of the Company;
(c) Make any public announcement with respect to, or seek, submit a proposal for or offer of (with or propose without conditions) (including to effect or participate inthe Board), any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries securities or joint ventures assets;
(d) Form, join or in any of their respective securities way participate in a 13D Group (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude other than the tender by any PW Group/Luxor/▇▇▇▇▇ ▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of Group) in connection with any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/foregoing (it being understood that the “Independent Designee” shall not be deemed to be part of the ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities Group solely as a result of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/and the ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholders Group entering into this Agreement and the operation hereof);
(e) Present at any annual meeting or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member any special meeting of the Company’s current stockholders or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including through action by written action, consent any proposal for consideration for action by stockholders or (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (Cexplicitly permitted by this Agreement) propose any nominee for election to the Board or seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(viif) take any action in support of Make, or make any proposal cause to be made, by press release or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications similar public statement to the Company’s Articles of Incorporation press or Bylawsmedia, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted onin an SEC filing, any securities exchange, statement or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, that disparages the Company, its managementofficers or its directors or any person who has served as an officer or director of the Company in the past (and the Company shall not make, policies or affairscause to be made, by press release or similar public statement, including to the press or media or in an SEC filing, any statement or announcement that disparages any member of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group, the officers, directors, partners or employees, as applicable, of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group, or any person who has served as an officer, director, partner or employee, as applicable, of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group in the past);
(g) Institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its securities current or assets former directors or this Agreement that is inconsistent with officers (including derivative actions) other than to enforce the provisions of this Agreement;
(ixh) enter into any discussions, negotiations, agreements Request the Company or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly requestits Representatives, directly or indirectly, to amend or waive any amendment or waiver of the foregoing. The foregoing provisions provision of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting 4.1 in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and a manner that would not reasonably be expected to, require any public disclosure of such communications.disclosure; or
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (Direct or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through instruct any of the Nominees their respective Subsidiaries, Representatives or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or Affiliates to take any Affiliate or Associate thereof)such action listed above.
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Spark Networks Inc)
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from From the date hereof until the termination of this Agreement in accordance with Section 5 until 11:59 p.m., Pacific time, on the day of the Company’s 2020 Annual Meeting of Stockholders (such period, the “Covered Restricted Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willthe Nokomis Group will not, and it the Nokomis Group will cause each of the Investors and its Affiliates and their respective Affiliates, Associates principals, directors, general partners, officers, employees, agents and representatives acting on its respective behalf not to, in any way, directly or indirectly (in any mannereach case, alone or in concert with others:except as expressly permitted by this Agreement):
(a) (i) make, engage in, participate in or in any way participate in, directly or indirectly, encourage any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard Securities and Exchange Commission (the “SEC”)) of proxies with respect to the exclusion set forth election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in Rule 14a-1(l)(2)(iv) the proxy rules of the Exchange ActSEC) in any such solicitation of proxies or consents to vote, consents; or (iii) seek to advise, encourage or influence any person Person with respect to the voting of any securities Voting Securities; provided, however, that except as set forth in paragraph 4, nothing herein shall be interpreted to restrict the Investors’ ability to vote their shares on any proposal duly brought before the Company’s stockholders as each member of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” Investors determines 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)its sole discretion;
(iib) forminitiate, join, encourage, influence, advise propose or in any way participate in any otherwise “groupsolicit” (as such term is defined used in Section 13(d)(3) the proxy rules of the SEC), directly or indirectly, the Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Securities Exchange Act for purposes of this Agreement1934, as amended (the “Exchange Act”), or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any such groupcandidate to the Board; (ii) seek, alone or in concert with others, the removal of any member of the Board; or (iii) make a “Section 13(d) Group”) with request for any persons (stockholder list or other thansimilar Company records provided, with respect to PW Group/Luxor/however, that nothing herein shall prohibit ▇▇. ▇▇▇▇▇▇▇ Shareholders, from making such a Section 13(d) Group that includes all or some of the persons identified on the Group 13D request in his capacity as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementa director;
(iiid) acquire, offer (i) form or propose to acquire, join (whether or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining not in writing) in a partnership, limited partnership, syndicate or other group (including any group, including, without limitation, a “group” as defined pursuant to Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction Voting Securities (other than any group comprised solely of Investors); (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (Biii) prohibit subject any PW Group/Luxor/▇▇▇▇▇▇ Shareholders Voting Securities to any voting trust, arrangement or Affiliate or Associate thereof from offering to purchase assets agreement, in each case other than solely with other Affiliates of the Company if the sale of such assets is initiated Nokomis Group with respect to Voting Securities now or hereafter owned by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Actthem;
(ve) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to callact, alone or in concert with others, any meeting of shareholders, including by written action, to (Bi) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act control or seek to act by written actioncontrol, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list influence or other Company books and recordsseek to influence, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advisingmanagement, controlling, changing or influencing the Board or management the policies of the CompanyCompany (including, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Boardwithout limitation, except as set forth herein, (B) any material change in to the capitalization, stock repurchase programs and practices capitalization or dividend policy of the Company, (C) Company or any other material change in the Company’s management, business or corporate structure); provided, however, that nothing herein shall limit the Investors’ ability to communicate their views with respect to the aforementioned privately to the Board and management of the Company; or (ii) seek, propose or make any public statement with respect to any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transaction involving the Company or its subsidiaries;
(f) with respect to the Company or the Voting Securities, (Di) seeking to have the Company waive or make amendments or modifications to communicate with the Company’s Articles stockholders or others pursuant to Rule 14a-1(l)(2)(iv) pursuant to the Exchange Act in a manner inconsistent with the provisions of Incorporation or Bylawsthis paragraph 6; (ii) participate in, or other actions that may impede or facilitate the acquisition of control of the Company by take any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted onaction pursuant to, any securities exchange, “proxy access” proposal adopted by the SEC; or (Fiii) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Actconduct any nonbinding referendum or “stockholder forum”;
(viiig) publicly make or disclose any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, Board or the Company, its management, policies policies, affairs or affairsassets, any of its securities or assets the Voting Securities or this Agreement Agreement, that is inconsistent with the provisions of this Agreement, including, without limitation, any intent, purpose, plan or proposal that is conditioned on, or would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ixh) other than with other Affiliates of the Investor, enter into any discussionsagreements, negotiationsunderstandings or arrangements (whether written or oral), agreements or understandings with any Third Party with respect to any of the foregoingwith, or advise, assistfinance, knowingly encourage assist or seek to persuade encourage, any Third Party to take any action or make any statement with respect to any of the foregoingPerson, or otherwise take or cause any action or make any statement inconsistent in connection with any of the foregoing; or;
(xi) publicly requestsell, offer or agree to sell all or substantially all, directly or indirectly, through swap or hedging transactions, derivative agreements or otherwise, voting rights decoupled from the underlying Voting Securities held by the Investors to any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.third party; and
(bj) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote make or in favor of any way participate as an offerer (as such term is defined in Schedule TO under the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedExchange Act), directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or their Replacements acting solely as a director of other extraordinary transaction involving the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions its securities or raising issues to the Board) consistent with his fiduciary duties as a director of the Company assets (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder the foregoing will not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any Affiliates such transaction on the same basis as other stockholders of the Company, or Associates thereof shall seek from participating in any such transaction that has been approved by the Board); or (ii) make, or support any third party in making, any public proposal, either alone or in concert with others, to do indirectly through the Company or the Board that would reasonably be expected to require the Company to make a public announcement regarding any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereoftypes of matters set forth above in this paragraph 6(j).
Appears in 1 contract
Sources: Nomination Agreement (Telenav, Inc.)
Standstill. (a) Each The AREX Parties agree that, from the date of this Agreement until the PW Group Shareholders solely on behalf Termination Date (the “Standstill Period”), the AREX Parties shall not, and shall cause each of itself and its their respective Affiliates and Associatesor Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, each of as amended (the Luxor Shareholders solely on behalf of itself and its respective “Exchange Act”)) (such Affiliates and Associates collectively, the “AREX Affiliates”, and each an “AREX Affiliate”) and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself AREX Affiliates’ respective directors, officers, managers and its respective Affiliates and Associates hereby severally and employees not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willto, and it will cause each of direct its Affiliates and Associates their respective consultants, agents, representatives, attorneys and advisors (to the extent acting on its or their behalf) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person or entity with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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 at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group or entities that includes all or some of the persons identified on the Group 13D as of the date hereof and their are not AREX Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities Securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities Securities of the Company in any voting trust or similar arrangement, or subject any securities Securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) purchase or otherwise acquire, offer or offer, seek, propose to acquire, or agree to acquire, ownership (including beneficial ownership) of the Securities of the Company, any direct or indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of the Company that would result in the AREX Parties owning, controlling or otherwise having any beneficial ownership or other ownership interest in more than 9.99% of Common Stock outstanding at such time; provided, however, that nothing herein will require any shares of Common Stock to be sold to the extent that the AREX Parties exceed the ownership limit under this Section 2(a)(iii) as the result of a share repurchase or other Company action that reduces the number of outstanding shares of Common Stock;
(iv) other than through open market or block trade brokered sale transactions where the identity of the purchaser is unknown to the AREX Parties sell, offer or agree to sell directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities the Securities of the Company or any rights decoupled from the underlying securities Securities of the Company that held by the AREX Parties or any AREX Affiliate to any person or entity not a (A) Party to the extent any this Agreement, (B) member of the PW Group ShareholdersBoard, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d(C) Group with any officer of the othersCompany or (D) AREX Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”), that would knowingly result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (such Third Party, together with their its Affiliates and Associates and Associates, owning, controlling or otherwise having any beneficial or other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% ownership interest in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.54.99% in the aggregate of the shares of Common Stock outstanding at such time, except (2X) for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with respect no known history of activism or known plans to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined engage in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, activism or (3Y) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be in a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken transaction approved by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitationBoard;
(ivv) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person or entity to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, division, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or assets (each, an “Extraordinary Transaction”), ) or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders the AREX Parties or an AREX Affiliate or an Associate thereof of any securities Securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof offer not initiated in breach of any securities of standstill agreement to which the Company with respect to is a party;
(vi) except for settling any Extraordinary Transaction or (B) prohibit such transaction in existence as of April 15, 2020, engage in any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company transaction that would result in a “take privatenet short” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in position by effecting any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities Securities of the Company (it being understood that and the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as value from such a decline exceeds the aggregate value of the date hereof relating to securities Securities of the Company)Company beneficially owned by the AREX Parties;
(vivii) (A) call or seek to call, alone or in concert with others, call any meeting of shareholdersstockholders, including by written actionconsent, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders stockholders or otherwise act or seek to act by written actionconsent, (E) conduct a referendum of shareholders stockholders, (F) institute any litigation against the Company, its directors or its officers, except for initiating any legal proceeding solely to remedy a breach of or to enforce this Agreement or making counterclaims with respect to any legal proceeding initiated by or on behalf of the Company against the AREX Parties, or (FG) make a request for any shareholder stockholder list or other Company books and records, whether pursuant to Section 1600 220 of the California Corporations Code Delaware General Corporation Law or otherwise;
(viiviii) take any action in support of or make any proposal or request (in each case, other than non-public communications with the Company that are not intended to, and would not reasonably be expected to, require any public disclosure of such communications) that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, Board or unfilled newly-created directorships; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, ; (C) any other material change in the Company’s management, business or corporate structure, including, without limitation, its capital allocation, business operations or strategies or its management or other personnel; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles Certificate of Incorporation or the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, person or entity; (E) causing a class of securities Securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, ; or (F) causing a class of securities Securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of Except for (A) the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
Schedule 13D Amendment (x) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereofdefined below).,
Appears in 1 contract
Sources: Cooperation Agreement
Standstill. (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and AssociatesCompany hereby acknowledges that, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the unless otherwise agreed in writing by ▇▇▇▇▇▇ Shareholders solely on behalf ▇, for a period of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that 14 days from the date hereof until the termination of this Agreement in accordance with Section 5 Effective Date (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willthe Company will not, and it will cause each of its Affiliates and Associates not toaffiliates to not, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, acquire or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, propose or seek to advise, encourage acquire beneficial ownership or influence any person with respect to the voting economic ownership or rights that do not confer beneficial ownership (“Jounce Share Ownership”) of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, 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 at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/▇▇▇▇▇▇ Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the ▇▇▇▇▇▇ Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/▇▇▇▇▇▇ Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the ▇▇▇▇▇▇ Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the ▇▇▇▇▇▇ Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitationfor the avoidance of doubt, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or (B) prohibit any PW Group/Luxor/▇▇▇▇▇▇ Shareholders or Affiliate or Associate thereof from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or from offering to purchase the securities of the Company if a member of the Company’s current or previous management, any director or former director, or any of their Affiliates or Associates has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, right or other similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any security of Jounce or with a value derived in whole or in part from the value of any security of Jounce, whether or not such instrument or right shall be subject to settlement in the underlying class or series of stock of Jounce or otherwise (includingeach, without limitationa “Derivative Instrument”)) (ii) form, join or in any put way participate in a “group” (as such term is used in the rules of the United States Securities and Exchange Commission) (or call option or “swap” transactiondiscuss with any third party the potential formation of a group) with respect to any security securities (other than a broad-based market basket or indexincluding in derivative form) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company (it being understood that the PW Group/Luxor/▇▇▇▇▇▇ Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(vi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders Jounce; or (Fiii) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) cause any other material change in the Company’s management, business person or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party entity to take any action described in clauses (i) and (ii) above (the restrictions set forth in foregoing clauses (i) through (iii), the “Standstill Restrictions”); provided, however, that the restrictions set forth in this Section shall terminate immediately upon the public announcement by Jounce that it has, since the Effective Date, (A) entered into a definitive agreement with a third party for a transaction involving the acquisition (by way of merger, tender offer or make otherwise) of more than 50% of the outstanding capital stock of Jounce or 50% or more of the assets (on a consolidated basis) of Jounce or (B) materially amended the terms of its recommended business combination with Redx Pharma plc.
(b) Notwithstanding anything to the contrary herein, the restrictions set forth in this Section shall not apply to (i) any statement with respect to passive investment in any securities of Jounce by or behalf of any pension, employee benefit plan or trust of Company or any of the foregoingits affiliates, including without limitation any investment in any diversified index, mutual or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(x) publicly requestpension fund managed by an independent advisor, which fund in-turn holds, directly or indirectly, any amendment securities of Jounce, or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/▇▇▇▇▇▇ Shareholders or their directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the ▇▇▇▇▇▇ Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification securities of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the ▇▇▇▇▇▇ Shareholders shall cause all shares of Common Stock beneficially ownedJounce held, directly or indirectly, by it as a person acquired by Company or any of its affiliates after the applicable record date to be present for quorum purposes and to be voted hereof; provided that in favor of the election each case with respect to the Board of those director nominees nominated for election by foregoing clauses (i) and (ii) such investment or acquisition was not designed to circumvent the Board and against the removal of any directors whose removal is not recommended by the BoardStandstill Restrictions.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the Nominees or their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliates or Associates thereof shall seek to do indirectly through any of the Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/▇▇▇▇▇▇ Shareholder or any Affiliate or Associate thereof).
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Sources: Mutual Confidentiality Agreement (Concentra Merger Sub, Inc.)