Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly: (i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof; (ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1; (iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board; (iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities; (v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1; (vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and (vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity. (b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events: (i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company; (ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control; (iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company; (iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or (v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (Trade Street Residential, Inc.), Stockholders Agreement (Trade Street Residential, Inc.)
Standstill. (a) The Investors hereby agree Investor agrees that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) Termination Date, none of the outstanding Common StockInvestor, (ii) the fourth (4th) anniversary hereof Parent or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates willother controlled Affiliates, shall directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result except at the specific written request of the exercise of any rights Company or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock splitCompeting Bid, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire enter into, directly or agree to acquireindirectly, Beneficial Ownership of any Voting Securities to account for merger or business combination involving the dilutive effect of Company or any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofSubsidiaries;
(ii) enter into or agree, offer, propose or seek (whether otherwise act alone to publicly or otherwise) to enter intoseek, or otherwise be involved act in concert with others to seek, to control the management, Board or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) policies of the Exchange Act, merger or other business combination relating to all or part of Company; provided that the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be actions permitted if the purchasing party agrees in writing to be bound by the provisions clause (i) of this Section 5.14.8(a) and the actions of the Investor Observer in connection with serving as such shall be deemed to not violate this clause (ii);
(iii) other except as permitted by clause (i) of this Section 4.8(a), acquire additional shares of Voting Stock without the consent of the Board if the effect of such acquisition would be to increase the percentage of Total Current Voting Power of the Company represented by all Voting Stock beneficially owned by the Investor Group, including any Voting Stock issuable upon the exercise of any Non-Voting Convertible Shares, to more than a “solicitation” 17.5% of a “proxy” the sum of (as such terms are defined under Regulation 14A under A) the Exchange ActCompany’s shares of Common Stock then outstanding, disregarding clause and (B) any shares then issuable pursuant to the Warrant;
(iv) solicit or participate in the solicitation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely proxies with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to voteVoting Stock, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
Voting Stock (iv) call other than as otherwise provided or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action contemplated by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securitiesthis Agreement);
(v) deposit any Securities of the Company into Voting Stock in a voting trust unless such voting trust is bound by the provisions of this Section 5.1or, except as otherwise provided or contemplated herein, subject the Securities of the Company any Voting Stock to any arrangement or agreement or arrangement with any third party with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1Voting Stock;
(vi) seek representation on the Board or join a change in the composition 13D Group (other than a group comprising solely of the Board Investor and its Affiliates) for the purpose of acquiring, holding, voting or number disposing of directors elected by the holders of Common Voting Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andNon-Voting Convertible Shares;
(vii) bring any action or otherwise act to contest except at the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director specific written request of the Company or pursuant to actions taken by a Competing Bid, take any action which would reasonably be expected to require the Investors Company to make a public announcement regarding the possibility of a business combination or merger involving the Company or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.its Subsidiaries;
(bviii) The limitations provided publicly disclose any intention, plan or arrangement inconsistent with the foregoing;
(ix) knowingly advise, assist or encourage any other Persons in Section 5.1(a) shall, upon the occurrence of connection with any of the following eventsforegoing; or
(x) publicly request that the Company (or its respective directors, immediately be suspended officers, affiliates, employees or agents), directly or indirectly, amend or waive any provision of this Section 4.8(a), unless and until the expiration Person seeking such amendment or waiver has received the prior written invitation or approval of the time period set forth below Company. Notwithstanding anything to the contrary in this Agreement, (i) the prohibitions in this Article IV shall not affect the Investor’s ability to hold the Shares, (ii) the prohibitions in this Section 5.1(b4.8 shall not prevent the Investor from making any confidential offer or proposal to the Board for a potential transaction (including a Change of Control transaction), but only so long as the Investors or any and (iii) if (w) a Change of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 Control of the Exchange ActCompany has occurred, (x) by any Person the Company has entered into an agreement providing for a Change of Control of the Company, (y) a third party has made a public offer or proposal (including a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%offer) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board publicly announced an intention to make any such offer or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction thatproposal that would, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) any Person or 13D Group (other than (A) the remedy Company Existing Control Group, or (B) any Person or 13D Group that files a statement on Schedule 13G with the SEC and indicates on the cover page thereof that such Schedule 13G is being filed pursuant to Rule 13d-1(b) under the Exchange Act) has acquired beneficial ownership of any breach described Voting Stock representing 15% or more of the Total Current Voting Power of the Company represented by all Voting Stock, then, in Section 5.1(b)(veach case in this clause (iii), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified prohibitions in this Section 5.1(b4.8 shall immediately terminate without further force or effect and the Investor shall be released from compliance therewith.
(b) In the event that the Company becomes aware that the Investor Group’s beneficial ownership exceeds the ownership limitations under Section 4.8(a)) shall again be applicable for so long as and only , the Company will promptly provide written notice to the extent provided Investor. Following delivery of such notice, at the option of the Company, the Investor must either (i) sell shares of Common Stock to the Company, as soon as reasonably practicable after it receives notice thereof from the Company, at the closing price of the Common Stock on a Trading Market on the day prior to the date on which the Investor receives such notice, or (ii) sell such shares to a third party as soon as reasonably practicable after receiving such notice (which sale shall not be restricted by Section 4.9), in each case to cause the Investor Group’s beneficial ownership not to exceed such ownership limitations. If the Investor violates the provisions of clause (ii) of Section 4.8(a), the sole and exclusive remedy of the Company shall be to require (including through an action seeking specific performance under Section 7.13) the Investor to sell such shares of Common Stock that exceed the ownership limitations pursuant to the preceding sentence either to the Company or a third party, together with reasonable attorney’s fees and expenses incurred directly by the Company in connection with enforcing its rights under this AgreementSection 4.8(b).
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Benefitfocus,Inc.)
Standstill. (a) The Investors hereby agree that Each Investor agrees that, from the Closing date of this Agreement until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) expiration of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the CompanyStandstill Period, neither the Investors it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates, Associates and representatives not to, directly or indirectly, in any manner, acting alone or in concert with others:
(i) acquiresubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, offer as amended (the “Exchange Act”) or propose otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to acquire or agree to acquire, Beneficial Ownership the Board (including by way of any Voting SecuritiesRule 14a-11 of Regulation 14A), other than Voting Securities acquired as expressly permitted by this Agreement;
(Aii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a result “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the CompanyBoard, or (D) recommend or request or induce or attempt to maintain their aggregate percentage interest in induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the Company’s outstanding voting of the Common StockStock or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board; provided, however, that except as set forth in Section 2 and this Section 3, nothing herein shall be interpreted to restrict the Investor shall not be permitted Investors’ ability to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of vote their shares on any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under proposal duly brought before the Company’s 2013 Equity Incentive Plan shareholders as each member of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved Investors determines in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1sole discretion;
(iii) other than seek to call, or to request the call of, a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval special meeting of the election to the Board solely with respect to any Company’s stockholders, or make a request for a list of the Investor Nominated Directors permitted by Company’s stockholders or for any books and records of the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the BoardCompany;
(iv) call or seek take any action (including making any proposal to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action act) by the Common Stockholders of the Company, written consent;
(v) 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 and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of such Securities, or other Common Stock to any voting agreement or arrangement having similar effect unless such agreement or arrangement conforms pooling arrangement, other than to the provisions extent such a group may be deemed to result with the Company or any of its Affiliates or Associates as a result of this Section 5.1Agreement or the participation of the Investors in the Committee (but only so long as the Investors are the only members of said group);
(vi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 1 and Section 2 of this Agreement, seek representation to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andBoard;
(viiviii) bring any action acquire or otherwise act agree, offer, seek or propose to contest the validity of this Section 5.1; providedacquire, that nothing in clauses or cause to be acquired, ownership (ii), (iii), (iv) or (viincluding beneficial ownership) of this Section 5.1(a) shall apply to any of the Investor Nominated Director(s) solely in his assets or her capacity as a director business of the Company or any rights or options to actions taken by acquire any such assets or business from any person;
(ix) except as set forth in Section 3(x) below, other than at the Investors direction of the Board seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of their Affiliates to prepare control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Investor Nominated Directors to act Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such capacitytransaction involves a change of control of the Company.
(bx) The limitations provided solely with respect to an Opposition Matter, the Investors shall have the right to solicit in Section 5.1(a) shallopposition, upon and otherwise campaign publicly or privately against, any Opposition Matter and shall be free to engage in communications with shareholders and third parties in connection with an Opposition Matter and nothing in this Agreement shall be interpreted to restrict their ability to do so. As used herein, the occurrence of term “Opposition Matter” shall mean any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b)transactions, but only so long as to the Investors or any of their Affiliates did not directly or indirectly assistextent required by the Delaware General Corporation Law (or, facilitate, encourage or participate exclusively in any such events:
(i) on the commencement (as defined in Rule 14d-2 case of the Exchange Actissuance of more than twenty (20%) of the Company’s then outstanding shares of Common Stock, the rules of the Nasdaq Stock Market), to be submitted by any Person the Board to the Company’s stockholders for approval: the sale or transfer of all or substantially all of the Company’s assets in one or a series of transactions, the sale or transfer of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more majority of the outstanding shares of Voting Securities the Company’s common stock (through a merger, stock purchase or otherwise), any merger, consolidation, acquisition of control or other business combination, tender or exchange offer, dissolution, liquidation, reorganization, or change in capital structure (including issuance in the aggregate of more than twenty (20%) percent of the Company;
(ii) on the decision ’s then outstanding shares of Common Stock), in each case that has been approved by the Board or a duly constituted committee of but voted against by (A) the Board ▇▇▇▇▇ Street Director (ain which case only ▇▇▇▇▇ Street shall have such rights) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (bB) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
the Additional Director (iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which case only Stone House shall have such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iiirights), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (Baker Street Capital Management, LLC), Cooperation Agreement (Usa Truck Inc)
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time For so long as the Investors and Stockholders or any of their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) successors or assigns hold the shares of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof Parent Stockholder and its wholly owned or (iii) a Change of Control of the Companycontrolled subsidiaries shall not, without the prior written approval consent of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(ia) acquire, offer offer, seek or propose to acquire acquire, or agree to acquire, Beneficial Ownership of directly or indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the Exchange Act), by purchase or otherwise, any Voting Securities, other than Voting Securities acquired (A) as a result capital stock of the exercise Company or direct or indirect rights to acquire any capital stock of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any subsidiary or division of its subsidiaries the Company or of any of their respective businesses; providedsuch successor or controlling person, however, that negotiated private sales of shares of if such acquisition would cause the Stockholders’ ownership interest in the Common Stock to a single purchaser exceed, (i) prior to and including the date that is six months following (x) the closing of the Tender Offer or a “group” will be permitted (y) if the purchasing party agrees Stockholders withdraw or decline to close the Tender Offer, the withdrawal or expiration of the Tender Offer (such date being, the “Six Month Anniversary Date”), 19.9% of the Company’s outstanding Common Stock as measured immediately after the Company’s issuance of the Consideration Shares and the Top-up Shares (each as defined in writing the Purchase Agreement); provided that in no event shall the sum of the Consideration Shares and the Top-up Shares exceed 19.9% of the Company’s outstanding Common Stock as measured immediately prior to be bound by the provisions commencement of this Section 5.1the Tender Offer, and (ii) after the Six Month Anniversary Date, twenty percent (20.0%) of the Company’s outstanding Common Stock as measured as of the date of any such acquisition;
(iiib) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate inparticipate, directly or indirectly, in any such “solicitation” of “proxies” to votevote (as such terms are used in the rules of the Commission), or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(ivother than Parent Stockholder and its subsidiaries) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities capital stock of the Company;
(iic) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, any public announcement with respect to an unsolicited to, or submit a proposal for a transaction that, if consummated, would result in a Change or offer of Control;
(iiiwith or without conditions) on the decision by the Board (including to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of the Company), any extraordinary transaction involving the Company or any of its securities or assets, except as provided herein;
(d) form or join a plan 13D Group (other than any such group consisting solely of liquidation Parent Stockholder and its subsidiaries) in connection with any of the foregoing;
(e) otherwise act or dissolutionseek to control the management or Board or policies of the Company, whether alone or in concert with others;
(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the events described in clauses (a) through (e) above;
(g) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section in a manner that would require public disclosure; or
(vh) on the occurrence of any material breach by the Company of direct or instruct any of its material obligations under this Agreementtheir respective subsidiaries, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors representatives or affiliates to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of take any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementaction.
Appears in 2 contracts
Sources: Stockholders Rights Agreement, Stockholders Rights Agreement (WPP PLC)
Standstill. (a) The Investors hereby agree that Subject to Section 5.7, from the Closing date of this Agreement until the earliest of second (i2nd) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) anniversary of the outstanding Common StockClosing Date (the “Standstill Period”), (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control Trustee shall ensure that each Trust and the Representatives of the CompanyTrustee who are directors, without the prior written approval officers or employees of the CompanyTrustee do not, neither and will use its reasonable best efforts to cause its other Representatives that are acting on its behalf in connection the Investors nor any Reclassification, alternatives thereto, the Company or the interests of its Affiliates willthe Trusts therein to not, directly or indirectly, except with the prior written invitation or consent of the Board:
(i) acquireother than the Existing Shares, offer or propose to acquire or agree to acquirebeneficially own any shares of Class A Stock, Beneficial Ownership of any Voting Securities, Class B Stock or other than Voting Securities acquired (A) as a result equity securities of the exercise Company (including, from and after the Closing, any shares of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock) or any options, warrants, swaps, forward contracts or other derivative instruments with respect thereto (each, “Company Securities”); provided, however, that the Investor Trustee, on behalf of the Trusts, shall not be permitted prohibited from entering into customary “short position” derivative transactions with respect to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Company Securities to account for the dilutive effect purpose of any issuance hedging the economic exposure to the Trusts of equity securities up to a maximum owning the Existing Shares, as long as the Trustee, on behalf of the 4,329 shares of Common Stock authorized for issuance under Trusts, retains the Company’s 2013 Equity Incentive Plan as of ability at all times to vote the date hereofCompany Securities subject to any such arrangements;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intomake, or otherwise be involved in any way participate in, directly or part ofindirectly, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are term is defined under Regulation 14A in Rule 14a-1 under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of under the election Exchange Act) to the Board solely with respect to vote or refrain from voting any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, Company Securities;
(iii) make any director nomination or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity shareholder proposal with respect to the voting election of any director to the BoardCompany;
(iv) call act, whether alone or with others, to propose or seek to call a meeting propose any merger, share exchange, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or other disposition or acquisition of any part of the Common Stockholders consolidated assets of, the Company;
(v) solicit, initiate, knowingly encourage or knowingly facilitate, or negotiate with any person(s) with respect to any merger, share exchange, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or other disposition or acquisition of any part of the consolidated assets of, the Company;
(vi) deposit any Company Securities in a voting trust or similar arrangement or enter into or subject any Company Securities to any voting agreement or similar arrangement;
(vii) act as a financing source for, or facilitate any financing by, any other person(s) in connection with any of the Company’s subsidiaries or initiate foregoing;
(viii) take any stockholder proposal for action by the Common Stockholders in pursuit of any of the Companytypes of matters set forth in this Section 5.6 which would, formor would reasonably be expected to, join require the Company to make a public announcement regarding any of the types of matters set forth in this Section 5.6 or in response thereto;
(ix) disclose any way participate in intention, plan or arrangement, or enter into any negotiations, arrangements or understandings with any person(s), which are inconsistent with any of the foregoing;
(x) form or join a “group” group (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securities;person(s) in connection with the taking of any action set forth in this Section 5.6, or act together with or knowingly encourage any person or group in taking any such actions; or
(vxi) deposit make any Securities of request to the Company into a voting trust unless such voting trust is bound by the provisions or its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.15.6. For the avoidance of doubt, or subject to Section 5.4, this Section 5.6(a) shall not limit the Securities ability of the Company Trustee or the Trusts to vote for or against, grant proxies, written consents or ballots in relation to, tender into or abstain from taking any agreement or arrangement action in connection with respect to the voting of such Securitiestransactions, proposals or other agreement matters initiated and coordinated by other persons unaffiliated with the Trustee and the Trusts and acting independently of, and not in conjunction with or arrangement having similar effect unless such agreement at the behest or arrangement conforms to instigation of, the provisions of this Section 5.1;
(vi) seek representation on Trustee and the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityTrusts.
(b) The limitations provided in Section 5.1(a) shallTrustee, upon on behalf of each Trust, hereby irrevocably and unconditionally agrees, during the occurrence of any Standstill Period, at each annual or special meeting of the following eventsShareholders, immediately be suspended until the expiration of the time period set forth below however called, including any adjournment or postponement thereof, and in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, connection with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed to be taken by a Person pursuant written consent of the Shareholders, that the Trustee, on behalf of each Trust, shall, in each case to the filing of a preliminary proxy statement with respect fullest extent that the Covered Shares are entitled to the commencement of a proxy vote thereon or consent solicitation subject thereto, appear, in person or by proxy, at each such meeting or otherwise cause the Covered Shares to Section 14 be counted as present thereat for purposes of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of determining a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementquorum.
Appears in 2 contracts
Sources: Reclassification Agreement (BESSEMER TRUST Co NATIONAL ASSOCIATION), Reclassification Agreement (Hubbell Inc)
Standstill. During the period (asuch period, the “Standstill Term”) The Investors hereby agree that from commencing as of the Closing and continuing until the earliest later of (iA) such time as the Investors second (2nd) anniversary of the Closing Date, (B) the expiration of the Director Period, and their (C) the date on which the Investor and its Affiliates no longer collectively beneficially own at least four and nine-tenths less than five percent (4.95.0%) of the outstanding shares of Common StockStock then issued and outstanding, the Investor, SK Holdings and SK E&S shall not (and shall cause their respective Affiliates not to), except as expressly approved or invited in writing by the Company:
(a) other than Permitted Purchases, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”);
(b) make a tender, exchange or other offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the fourth Board any person whose nomination has not been approved by a majority of the Board (4thexcluding the Designated Director, if any);
(d) anniversary hereof directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (iiian “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, such offer or propose proposal is referred to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stockan “Acquisition Proposal”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized actions otherwise prohibited by this Section 3.1(d) for issuance under so long as the Company’s 2013 Equity Incentive Plan as of the date hereofBoard maintains and does not withdraw such recommendation;
(iie) enter into directly or agreeindirectly, offer, solicit proxies or consents or propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved become a participant in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or entity subject any securities of the Company to any arrangement or agreement with respect to the voting election of such securities, including the granting of any director to the Boardproxy;
(ivg) call propose (i) any merger, consolidation, business combination, tender or seek to call a meeting exchange offer, purchase of the Common Stockholders Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Company’s subsidiaries Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or initiate any stockholder proposal for action by the Common Stockholders of the Companyindirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (within as terms are used in the meaning of Section 13(d)(3) rules of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement SEC with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities securities of the Company;
(iii) on the decision by request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 3.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a duly constituted committee public announcement regarding, a potential Business Combination or any of the Board matters set forth in clauses (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or through (bi) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutionabove; or
(vk) on enter into discussions, negotiations, arrangements or agreements with any Person relating to the occurrence foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 3.1 shall prohibit the Investor or any of any material breach its Affiliates from making confidential, non-public proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company of any of its material obligations under this Agreement, which breach after the Closing that it has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach entered into a definitive agreement with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect Third Party for a Change of Control, or the decision of the Board or transaction involving a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementBusiness Combination.
Appears in 2 contracts
Sources: Investor Agreement (Plug Power Inc), Stock Purchase Agreement (Plug Power Inc)
Standstill. Each member of the Shareholder Group agrees that during the Standstill Period he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to:
(a) The Investors hereby acquire, offer to acquire or agree that from to acquire by purchase, tender offer, exchange offer, agreement or business combination or any other manner beneficial ownership of any securities of the Closing until Company, if after completion of such acquisition or proposed acquisition, the earliest members of (i) such time as the Investors and their Affiliates no longer collectively Shareholder Group, in the aggregate, would beneficially own at least four and nine-tenths more than ten percent (4.910%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under (based on the Company’s 2013 Equity Incentive Plan as latest annual, quarterly or other report of the date hereof;
(ii) enter into Company filed with the SEC pursuant to Section 13 or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d15(d) of the Exchange Act), merger excluding the acquisition of equity-based compensation pursuant to Section 11 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation;
(b) 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 combination relating to all for consideration, or part of the Company or nominate any of its subsidiaries or any acquisition transaction candidate for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of or oppose the Investor Nominated Directors directors nominated by the Board, other than as expressly permitted by the terms hereof to serve on such Boardthis Agreement;
(c) form, make, join in or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join 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 other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement), (ii) to the extent such a group may be deemed to result with the Company any of its Affiliates as a result of this Agreement or (iii) a voting agreement entered into pursuant to a Sale Transaction (as defined below) which has been approved by a majority of the Board;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act, in each case, to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting;
(e) call, seek to call, or to request the calling of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (other than the Shareholder Group and regulations thereundertheir Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, (iii) any tender offer or exchange offer, merger, change of control, acquisition or other business combination involving the Company or any of its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been publicly announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or ▇▇▇▇▇▇▇, in his capacity as a shareholder of the Company, to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the Company, or members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) disparage the Company or any member of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) 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 Voting Securitiessecurity (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(vj) deposit any Securities demand or make a request for inspection of the Company into a voting trust unless such voting trust is bound by Company’s records under the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1Georgia Business Corporation Code;
(vik) seek representation on the Board enter into any arrangements, understandings or a change agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in the composition any of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreementforegoing; andor
(viil) bring take or cause or induce or assist others to take any action or otherwise act to contest inconsistent with any of the validity of this Section 5.1foregoing; provided, that nothing notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit ▇▇▇▇▇▇▇ from engaging in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely any lawful act in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision that is either approved by the Board or a duly constituted committee of the Board (a) required for ▇▇▇▇▇▇▇ to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, comply with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementhis fiduciary duties.
Appears in 2 contracts
Sources: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. On the Effective Date, each of the Purchaser Parties will deliver to New Osisko a covenant that it will not, during the Standstill Period (adefined below) The Investors hereby agree that from without the Closing until the earliest consent of New Osisko: (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership directly or indirectly, by purchase or otherwise, more than 5% of any Voting Securities, other than Voting Securities acquired voting securities or securities convertible into or exchangeable for voting securities (A) as a result of the exercise with notice to be provided to New Osisko when 1% of any voting securities or securities convertible into or exchangeable for voting securities have been acquired, and for each additional 1% acquired thereafter), or direct or indirect rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose options to acquire or agree to acquireany voting securities, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
New Osisko; (ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” solicitation of “proxies” proxies to vote, or seek to advise or influence any other person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securitiesany voting securities of New Osisko; (iii) otherwise seek to control or influence the management, directors or other agreement corporate policies of New Osisko or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek obtain representation on the Board or a change in the composition New Osisko’s board of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreementdirectors; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) engage in any discussions or negotiations, enter into any agreement or submit any proposal or offer (with or without conditions) in connection with any business combination or other acquisition transaction or extraordinary transaction involving New Osisko; or (viv) of this Section 5.1(a) shall apply enter into any discussions or arrangements with any third party with respect to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration foregoing; or make any public announcement of any intention to do or take any of the time foregoing. The “Standstill Period” shall be the period set forth below in this Section 5.1(b), but only so long as commencing on the Investors or any Effective Date and ending on the earlier of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 fifth anniversary of the Exchange ActEffective Date, or (ii) by any Person the date upon which New Osisko shall have approved or entered into, or announced the approval or entering into of, an agreement, transaction or series of related transactions with a tender person other than such Purchaser Party, a person under common control with such Purchaser Party or exchange offer seeking to acquire Beneficial Ownership a person acting jointly or in concert with the foregoing (a “Third Party”) having as its object the acquisition, directly or indirectly, of fifty percent (50%) or more not less than 20% of the outstanding shares voting or equity securities of Voting Securities New Osisko or assets of New Osisko or its subsidiaries (or both) Yamana representing not less than 20% of the Company;
(ii) net asset value or contribution to earnings of New Osisko and its subsidiaries on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementconsolidated basis.
Appears in 2 contracts
Sources: Arrangement Agreement (Agnico Eagle Mines LTD), Arrangement Agreement (Yamana Gold Inc.)
Standstill. (a) The Investors hereby agree that from During the Closing until Standstill Period, the earliest Raging Capital Group, each Member, each Raging Capital Designee and each of (i) such time as the Investors and their respective Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companyshall not, without the prior written approval consent of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(ia) own, acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 Common Stock (excluding (x) 18,888 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan Beneficially Owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as of the date hereof;
of this Agreement, (iiy) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its 18,667 shares of Common Stock to a single purchaser or a “group” Beneficially Owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇ as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part date of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of this Agreement and (z) shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound underlying New Convertible Notes Beneficially Owned by the provisions Raging Capital Group as of the date of this Section 5.1Agreement) or (ii) Beneficial Ownership of any Senior Notes, Convertible Notes, New Convertible Notes or any other interests in the Company’s indebtedness, now in existence or which may be created in the future (excluding $27,500,000 principal amount of Senior Notes and $2,940,000 principal amount of New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement);
(iiib) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate inparticipate, directly or indirectly, in any such “solicitation” of “proxies” to votevote (as such terms are used in the rules of the SEC), or seek to advise or influence any person or entity with respect to the voting election of, any Voting Stock of the Company;
(c) separately or in conjunction with any director other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent, submit a recommendation of, suggestion to evaluate or pursue, or any proposal for, offer of, or comment on (with or without conditions) (including to the Board;
(iv) call or seek to call a meeting any Extraordinary Transaction. “Extraordinary Transaction” means any of the Common Stockholders following involving the Company or any of its Subsidiaries or its or their securities or a material amount of the assets or businesses of the Company or any of the Company’s subsidiaries its Subsidiaries: any tender offer or initiate any stockholder proposal for action by the Common Stockholders exchange offer, merger, acquisition, divestiture, business combination, reorganization, restructuring, recapitalization, sale or acquisition of the Companymaterial assets, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board publicly-traded status or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investorexchange, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.;
Appears in 2 contracts
Sources: Settlement Agreement (Raging Capital Management, LLC), Stock Purchase Agreement (Wb & Co)
Standstill. Other than pursuant to the preemptive rights set forth in Article III, as contemplated by the Purchase Agreement, any exercise of the Warrant or actions taken by the Series A Director in his/her capacity as a member of the Board in light of such director’s fiduciary duties, until the earlier of (a) The the 3rd anniversary of the date hereof, (b) the expiration of the right of Series A Requisite Investors hereby agree that from to elect the Closing until Series A Director, and (c) the earliest of (i) such time as date on which the Investors and their Affiliates no longer collectively beneficially own at least four and nine-tenths percent (4.9%) less than 5% of the outstanding shares of Common StockStock then issued and outstanding, the Investors shall not (provided, that the foregoing limitation shall only apply to the “Power Opportunities” and “Opportunities” strategies of the Investors, and not to any other strategies of the Investors, the Investors’ Affiliates or any of its or their other investments or portfolio companies), except as expressly approved or invited in writing by the Company: (i) directly or indirectly, acquire beneficial ownership of Common Stock or Common Stock Equivalents or any instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of Common Stock (a “Derivative”); (ii) the fourth (4th) anniversary hereof make a tender, exchange or other offer to acquire Common Stock or Common Stock Equivalents; (iii) directly or indirectly, (1) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (2) propose or nominate for election to the Board of Directors any person whose nomination has not been approved by a majority of the Board of Directors (excluding the Series A Director); (iv) directly or indirectly, knowingly encourage or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for Common Stock (if such offer or proposal would, if consummated, result in a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, such offer or propose proposal is referred to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stockan “Acquisition Proposal”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or actions otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound prohibited by the provisions of this Section 5.1;
5.1 for so long as the Board of Directors maintains and does not withdraw such recommendation; (iiiv) other than directly or indirectly, knowingly solicit proxies or consents or become a “solicitation” of participant in a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act); (vi) publicly propose (1) any merger, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval consolidation, business combination, tender or exchange offer, purchase of the election to Company’s assets or businesses or any similar transaction involving the Board solely with respect to Company or (2) any of the Investor Nominated Directors permitted by the terms hereof to serve on such Boardrecapitalization, makerestructuring, liquidation or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity other extraordinary transaction with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within each case without the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee prior written consent of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result described in a Change of Control or clauses (b1) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, and (2) that would result in a Change of Control;
, is referred to as a “Business Combination”); (iiivii) on the decision by the Board knowingly act in concert with any Third Party to recommend that stockholders approve take any action proposed by in clauses (i) through (vi) above; (viii) make any public announcement regarding, or take any action that would reasonably be expected to require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in clauses (i) through (vii) above; or (ix) enter into any arrangements or agreements with any Person pursuant relating to the filing foregoing actions referred to in (i) through (vii) above; provided, however, that nothing contained in this Section 5.1 shall prohibit the Investor or any of a preliminary proxy statement with respect their Affiliates from making confidential, non-public proposals to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementDirectors.
Appears in 2 contracts
Sources: Investor Rights Agreement (Tpi Composites, Inc), Investor Rights Agreement (Tpi Composites, Inc)
Standstill. (a) The Investors TPG hereby agree agrees that from the Closing until the earliest of (i) such time as the Investors TPG and their its Affiliates no longer collectively own at least four and nine-tenths five percent (4.95%) of the outstanding Common StockStock on an as-converted basis, (ii) the fourth fifth (4th5th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors TPG nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) upon conversion of the Preferred Stock, (C) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (CD) directly from the Company, or (DE) to maintain restore their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum Stock (assuming conversion of the 4,329 shares Series E Preferred Stock, without taking into account any provisions restricting the convertibility thereof) if such percentage interest has been reduced for any reason, including as a result of a sale of Capital Stock by TPG and its Affiliates, provided that any such reduction has not resulted in TPG and its Affiliates collectively owning less than five percent (5%) of the outstanding Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofon an as-converted basis;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Company Board solely with respect to any of the Investor TPG Nominated Directors permitted by the terms hereof to serve on such Company Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of, any Common Stock of the Company or any director to the Boardof its subsidiaries;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1trust, or subject the any Securities of the Company to any agreement or arrangement with respect to the voting of such Securitiessecurities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1effect;
(vi) seek representation on the Company Board or a change in the composition of the Company Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the InvestorTPG, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor TPG Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors TPG or any of their its Affiliates to prepare the Investor TPG Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors TPG or any of their its Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Company Board or a duly constituted committee of the Company Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;.
(iii) on the decision by the Company Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement by any Person with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or;
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty ten (3010) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. thereof; or
(vi) upon the failure by the Company to pay the Holders of the Preferred Stock any dividends due thereon for four (4) successive fiscal quarters; Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Company Board or a duly constituted committee of the Company Board to reject all such proposals, (w) the abandonment by the Company Board or a duly constituted committee of the Company Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (xy) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), or (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v) or the payment to the Holders in full in cash (by wire transfer of immediately available funds) all dividends then due and owing in respect of the Preferred Stock held by such Holders as contemplated in Section 5.1(b)(vi), as the case may be, the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (Parkway Properties Inc), Securities Purchase Agreement (Parkway Properties Inc)
Standstill. (a) The Investors hereby agree Investor agrees that from during the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the CompanyStandstill Period, without the prior written approval of the CompanyCompany or the Company Board, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer as otherwise expressly permitted or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or contemplated by this Agreement, the Investor will not and will cause its controlled Affiliates not to:
3.1.1 acquire beneficial ownership of any securities (Bincluding in derivative form) pursuant to a stock splitof the Company or make any tender, stock dividendexchange or other offer for such an acquisition, recapitalizationexcluding, reclassification or similar transactionin the case of the Investor, acquisition of (a) the Common Shares, (Cb) directly from subject to the Companyprior consent of the Company (which consent shall be deemed to have been granted if the Company does not affirmatively advise the applicable Investor that the Company withholds such consent within one Trading Day after receiving such request for consent, and which consent may only be withheld if the Company reasonably believes such acquisition of Capital Stock or (D) to maintain their aggregate percentage interest other Equity Interests of the Company will be treated as an “ownership change” as defined in Section 382 of the Code), any Capital Stock or other Equity Interests of the Company acquired by the Investor or its controlled Affiliates so long as the total beneficial ownership of the Investor and its controlled Affiliates in the Company’s outstanding voting securities, after giving effect to such acquisition, would not exceed 25% of the Company’s total voting power at such time and (c) any securities received from the Company by way of dividend or distribution;
3.1.2 directly or indirectly, (a) seek to have called any meeting of the stockholders of the Company or (b) propose or nominate for election to the Company Board any person whose nomination has not been approved by a majority of the Company Board or cause to be voted in favor of such person for election to the Company Board any Shares of Then Outstanding Common Stock;
3.1.3 directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person or group the consummation of which would result in a Change of Control (other than as a seller on the same terms as the other holders of the Company’s Equity Securities) (an “Business Combination”); provided, however, that from and after the Investor shall not be permitted to acquire, offer filing of a Schedule 14D-9 (or propose to acquire or agree to acquire, Beneficial Ownership successor form of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance Tender Offer Solicitation/Recommendation Statement under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) Rule 14d-9 of the Exchange Act, merger or other business combination relating to all or part ) by the Company wherein a majority of the Company or Board recommend that stockholders accept any such Business Combination, the Investor and its Affiliates shall not be prohibited from taking any of its subsidiaries or any acquisition transaction the actions otherwise prohibited by this Section 3.1.3 in connection with such Business Combination for all or part of the assets of so long as the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1Board maintains and does not withdraw such recommendation;
(iii) other than 3.1.4 directly or indirectly, solicit proxies or consents or become a “solicitation” of participant in a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) in opposition to the recommendation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval a majority of the election to the Company Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makematter, or in any way participate in, any such “solicitation” of “proxies” to vote, or knowingly seek to advise or influence any person Person, with respect to voting of any Shares of Then Outstanding Common Stock;
3.1.5 deposit any Shares of Then Outstanding Common Stock in a voting trust or entity subject any Shares of Then Outstanding Common Stock to any arrangement or agreement with respect to the voting election of any director to the Boardsuch Shares of Then Outstanding Common Stock;
3.1.6 propose (iva) call any merger, consolidation, business combination, tender or seek to call a meeting of the Common Stockholders of the Company or any exchange offer, purchase of the Company’s subsidiaries assets or initiate businesses, or similar transaction involving the Company or (b) any stockholder proposal for action by the Common Stockholders of recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
3.1.7 act in concert with any third party to take any action in the preceding clauses 3.1.1 through 3.1.6, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act Act, other than any actions taken by the Investor related to negotiating, entering into and exercising the rules and regulations thereunder) rights under this Agreement, the Securities Purchase Agreement or any document entered into in connection with respect to any Voting Securitiesof the foregoing;
(v3.1.8 enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in the preceding clauses 3.1.1 through 3.1.7; or
3.1.9 request or propose to the Company Board, any member(s) deposit thereof or any Securities officer of the Company into a voting trust unless such voting trust is bound by that the Company amend, waive, or consider the amendment or waiver of, any provisions of set forth in this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of 3.1 (including this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1clause 3.1.9); provided, however, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a3.1 shall limit (i) shall apply the rights available (including the enforcement of such rights) to the Investor Nominated Director(s) solely in his or her capacity as a director of and its Affiliates under this Agreement, the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement Acquisition Agreement (as defined in Rule 14d-2 the Securities Purchase Agreement), the Securities Purchase Agreement or any document entered into in connection with any of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
foregoing, (ii) on the decision by the Board or a duly constituted committee ability of the Board Investor and its permitted transferees’ ability to make a pledge of securities (asubject to Section 2.1) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy Investor or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this AgreementAffiliates or their respective directors, which breach has not been remedied within thirty executive officers, partners, principals, employees or managing members or agents (30acting in such capacity) days after notice is delivered by the Investors to the Company setting forth such alleged breach from communicating privately with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company’s directors, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, officers or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for advisors so long as such communications are not intended to, and only to the extent provided in this Agreementwould not reasonably be expected to, require any public disclosure of such communications.
Appears in 2 contracts
Sources: Investor Rights Agreement (GTT Communications, Inc.), Securities Purchase Agreement (GTT Communications, Inc.)
Standstill. (a) The Investors hereby agree that from From the date hereof until the fourth anniversary of the Closing until Date, the earliest of (i) such time as the Investors Schlumberger Parties and their Affiliates no longer collectively own at least four (and nine-tenths percent (4.9%anyone acting on behalf of any such Persons) of the outstanding Common Stockwill not, (ii) the fourth (4th) anniversary hereof and will not enter into any agreement, understanding or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectlyother binding arrangement to:
(i) acquire, offer directly or propose to acquire or agree to acquireindirectly, Beneficial Ownership of any Voting Securities, equity securities of the Company other than Voting Securities acquired (A) as in connection with a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock share split, stock dividend, recapitalization, reclassification share dividend or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into publicly seek, make or agreetake any action to solicit or encourage any offer or proposal for any merger, consolidation, tender or exchange offer, propose sale or seek (whether publicly purchase of assets or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger securities or other business combination relating to all combination, restructuring, recapitalization or part of similar transaction involving the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1Company;
(iii) other than “solicit” or become a “participant” in any “solicitation” of a any “proxy” (as such terms are defined under in Regulation 14A under the Securities Exchange Act of 1934 (as amended, the “Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b”)) seeking approval from or by any other stockholder of the election Company in connection with any vote on any matter (whether or not relating to the Board solely with respect to any election or removal of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makedirectors), or in agree or announce its intention to vote with any way participate in, any such Person or group undertaking a “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board”;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of as defined under Section 13(d)(313(d) of the Exchange Act and or the rules and regulations promulgated thereunder) with respect to any Voting Securitiesequity securities of the Company;
(v) deposit grant any Securities proxies to any third party with respect to any equity securities of the Company into a voting trust unless such voting trust is bound (other than as recommended by the provisions of this Section 5.1, Board) or subject the Securities deposit any equity securities of the Company to any agreement or arrangement with respect to the in a voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;trust; or
(vi) seek representation on the Board request, propose or otherwise seek, in each case in a change in the composition manner that would require public disclosure, any amendment or waiver of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing provisions contained in clauses (ii), (iii), (iv) or (vii)-(v) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity3.1(a).
(b) The limitations provided restrictions set forth in Section 5.1(a3.1(a) shall, upon shall not apply at any time during which the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of Schlumberger Parties and their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more collectively Beneficially Own less than 10% of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementCommon Stock.
Appears in 2 contracts
Sources: Stockholders Agreement (Liberty Oilfield Services Inc.), Master Transaction Agreement (Liberty Oilfield Services Inc.)
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) From the Reclassification Effective Time until the later of the date that is five years after the Reclassification Effective Time and such time as each director nominated to the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent Board pursuant to Section 5.8(A) resigns from the Board (4.9%) the “Standstill Period”), each Stockholder will not, directly or indirectly, other than in any such Stockholder’s capacity as a member of the outstanding Common StockBoard, (ii) the fourth (4th) anniversary hereof and will use its reasonable best efforts to cause its Representatives that are acting on its behalf in connection with this Agreement to not, directly or (iii) a Change of Control of the Companyindirectly, without except with the prior written approval of the CompanyBoard (excluding the Sands Family Nominees):
(a) acquire or offer to acquire any Company Securities other than shares of Class A Common Stock and Class 1 Common Stock acquired pursuant to (1) the Reclassification, neither (2) conversions of existing shares of Class 1 Common Stock into shares of Class A Common Stock pursuant to the Investors nor provisions of the Amended and Restated Charter, (3) annual compensation grants or other equity compensation to such Stockholders as a result of their status as a member of the Board, (4) any of its Affiliates willTransfers permitted by Sections 5.8(B)(ii)(a)(1) or (5) as permitted by Section 5.8(A)(ii);
(b) (i) make, or in any way participate in, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are term is defined under Regulation 14A in Rule 14a-1 under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of under the election Exchange Act) to the Board solely with respect to vote or refrain from voting any of the Investor Nominated Directors permitted by the terms hereof to serve on such BoardCompany Securities, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(ivii) call or seek to call a meeting of the Common Stockholders of the Company stockholders or (iii) seek to advise or influence any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement person with respect to the voting of such any Company Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vic) other than (x) to effectuate the nomination and election of the Sands Family Nominees in Section 5.8(A) or (y) such actions that are consistent with the Board’s public recommendation on any director nomination or stockholder proposal, seek representation on the Board or a change in the composition removal of any member of the Board (including through any “withhold” or number of directors elected by similar campaign) or submit, initiate, participate in or knowingly encourage any director nomination or stockholder proposal with respect to the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andCompany;
(viid) bring propose any action merger, share exchange, business combination, tender or otherwise act exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or other disposition or acquisition of a material portion of the consolidated assets of, the Company;
(e) act, alone or in concert with others, to seek to change, control or influence, in any manner, the business, policies or affairs of the Company and its Subsidiaries;
(h) publicly disclose any intention, plan or arrangement, or enter into any negotiations, arrangements or understandings with any person(s), which are inconsistent with any of the foregoing;
(i) advise, knowingly assist, knowingly encourage or direct any person to do any of the foregoing; or
(k) contest the validity of this Section 5.15.8(C) or make any request to amend, waive or terminate this Section 5.8(C) that would reasonably be expected to require the Company or such Stockholder to publicly disclose such request.
(ii) For the avoidance of doubt, nothing in this Section 5.8(C) shall limit the ability of the Stockholders to (a) vote for or against, grant proxies, written consents or ballots in relation to, tender into or abstain from taking any action in connection with transactions, proposals or other matters initiated and coordinated by other persons unaffiliated with the Stockholders and acting independently of, and not in conjunction with or at the behest or instigation of, the Stockholders, (b) acquire or propose to acquire any Company Securities from other Stockholders or Family-Related Persons or (c) advise, assist, encourage or direct any other Stockholder or Family-Related Person to take actions in respect of Company Securities, including providing advice on voting and disposition of Company Securities; provided, that nothing the Stockholders acknowledge and agree that this clause (c) is not intended to evade the provisions of and shall not be construed to permit the contravention of the restrictions set forth in clauses (iithis Section 5.8(C), .
(iii)) During the Standstill Period:
(a) each Stockholder shall not, and shall cause its Representatives (ivacting at the direction of such Stockholder) not to, make any public statement that disparages or otherwise calls into disrepute the Company in any manner that could reasonably be expected to damage the business or reputation of the Company; and
(vib) of this Section 5.1(a) the Company shall apply to not, and shall cause its Subsidiaries and Representatives (acting at the Investor Nominated Director(s) solely in his or her capacity as a director direction of the Company or its Subsidiaries) not to, make any public statement that disparages or otherwise calls into disrepute the Stockholders and the Family-Related Persons in any manner that could reasonably be expected to actions taken by damage the Investors business or any reputation of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) persons. The limitations provided in Family-Related Persons shall be third-party beneficiaries of this Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below 5.8(C)(iv)(b). The restrictions in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did 5.8(C) shall not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) apply (1) in any compelled testimony or production of information in response to solicit one applicable law, or more proposals for a transaction that, if consummated, would result in a Change of Control (2) to any disclosure required by applicable law; or (b) prohibit any party from reporting what it reasonably believes to pursue discussions be violations of federal law or negotiations or make diligence materials available, with respect regulation to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person governmental authority pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 21F of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementRule 21F promulgated thereunder.
Appears in 2 contracts
Sources: Reclassification Agreement (Sands Richard Et Al), Reclassification Agreement (Constellation Brands, Inc.)
Standstill. (a) The Investors hereby C▇▇▇▇▇▇▇▇ Parties each agree that that, beginning as of the date hereof and continuing for a period of two years from the Closing until date of this Agreement, (the earliest of (i) such time as the Investors "Standstill Period"), they and their Affiliates no longer collectively own at least four affiliates or associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")) will not (and nine-tenths percent (4.9%) of the outstanding Common Stockthey will not assist or encourage others to), (ii) the fourth (4th) anniversary hereof directly or (iii) a Change of Control of the Companyindirectly, in any manner, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectlyBoard:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, alone or in concert with others, any "solicitation" of "proxies" to vote (as such “solicitation” terms are used in the proxy rules of “proxies” the Securities and Exchange Commission promulgated pursuant to vote, Section 14 of the Exchange Act) or seek to advise or influence in any manner whatsoever any person or entity with respect to the voting election of any director voting securities of PVF, except pursuant to the BoardPVF's publication of its proxy statement;
(ivii) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “"group” (" within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securitiesvoting securities of PVF;
(iii) acquire, offer to acquire or agree to acquire, alone or in concert with others, by purchase, exchange or otherwise, (a) any of the assets, tangible and intangible, of PVF or (b) direct or indirect rights, warrants or options to acquire any assets of PVF;
(iv) otherwise act, alone or in concert with others (except in his expressing views as a director at meetings of the board of directors or a committee of the board of directors of PVF or the Bank), to seek to offer to PVF or any of its stockholders any business combination, tender or exchange offer, restructuring, recapitalization or similar transaction to or with PVF or otherwise seek, alone or in concert with others to control or change the management, Board or policies of PVF or nominate any person as a director of PVF or the Bank who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the stockholders of PVF;
(v) deposit any Securities of the Company into make or cause to be made a voting trust unless such voting trust is bound proposal for consideration by the provisions stockholders of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;PVF; or
(vi) seek representation on the Board announce an intention to do, or a change in the composition enter into any arrangement or understanding with others to do, any of the Board actions restricted or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in prohibited under clauses (ii), i) through (iii), (iv) or (viv) of this Section 5.1(a) shall apply 2, or publicly announce or disclose any request to be excused from any of the Investor Nominated Director(s) solely foregoing obligations of this Section 2. At the 2008 PVF annual meeting of stockholders, the C▇▇▇▇▇▇▇▇ Parties agree to vote all the shares they collectively beneficially own, including shares owned by M▇. ▇▇▇▇▇▇▇▇▇'▇ wife or minor children, in his favor of the nominees for election or her capacity reelection as a director of the Company or to actions taken PVF selected by the Investors Board and otherwise to support such director candidates. Thereafter, during the Standstill Period, the C▇▇▇▇▇▇▇▇ Parties agree to vote all shares of PVF they or any of their Affiliates to prepare the Investor Nominated Directors to act them beneficially own, including shares owned by M▇. ▇▇▇▇▇▇▇▇▇'▇ wife or minor children, in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any favor of the following events, immediately be suspended until the expiration nominees for election or reelection as director of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision PVF selected by the Board or a duly constituted committee of the Board (a) and agree otherwise to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth support such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementdirector candidates.
Appears in 1 contract
Standstill. Without the prior written consent of Placement Agent, from the date hereof until forty five (45) days after the Closing Date, neither the Company nor any subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Ordinary Shares or Ordinary Share Equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto other than the Prospectus Supplement. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) Ordinary Shares or options to employees, officers or directors of the outstanding Common StockCompany pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (iib) securities upon the exercise or exchange of or conversion of securities exercisable or exchangeable for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) the fourth securities of the Company issued pursuant to the Purchase Agreements and (4thd) anniversary hereof securities issued pursuant to acquisitions or (iii) strategic transactions approved by a Change majority of Control the disinterested directors of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) provided that such securities are issued as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “grouprestricted securities” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act144) by any Person of a tender and carry no registration rights that require or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to permit the filing of any registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any such issuance shall only be to a preliminary proxy statement with respect Person (or to the commencement equityholders of a proxy Person) which is, itself or consent solicitation subject to Section 14 through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors and shall provide to the Company setting additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Please confirm that the foregoing correctly sets forth such alleged breach with specificityour agreement by signing and returning to the Placement Agents the enclosed copy of this Agreement. Upon By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Authorized Representative Titan Partners Group LLC, a division of American Capital Partners, LLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ New York, NY 10007 Attention: ▇▇▇▇ ▇▇▇▇▇ Email: **** Accepted and Agreed to as of the date first written above: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: CEO & Chairman Address for notice: Gorilla Technology Group Inc. Meridien House ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Marble Arch ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Email: **** THIS PLACEMENT AGENT ORDINARY SHARE PURCHASE WARRANT (uthe “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any withdrawal time on or lapsing after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on ____, 20301 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Gorilla Technology Group Inc., a company organized under the laws of any such tender or exchange offer referred the Cayman Islands (the “Company”), up to ______ Ordinary Shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one Ordinary Share under this Warrant shall be equal to the Exercise Price, as defined in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii2(b), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Placement Agency Agreement (Gorilla Technology Group Inc.)
Standstill. (a) The Investors and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Corporation each, on behalf of themselves, hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stockthey will not, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor will they permit any of its Affiliates willAffiliate to, directly or indirectly:
, (unless in any such case specifically approved in advance to do so by the Board of Directors, and (i) in the case of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Corporation, unless approved by Greenwood, or (ii) in the case of the Investors or any of their Affiliates, by a director not appointed by or affiliated in any way with the Investors) acquire, offer or propose to acquire acquire, or agree to acquireacquire any Common Stock or other securities of the Company in an open-market transaction (“Company Securities”). Without limiting the generality of the foregoing, Beneficial Ownership the following shall not be considered “open-market transactions” and nothing contained herein shall prohibit any member of the Investor Group or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ Corporation from acquiring any Voting Securitiessuch Company Securities (i) upon conversion of the Notes, other than Voting Securities acquired (Aii) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification dividend or similar transactionrecapitalization by the Company, (Ciii) pursuant to the exercise of any warrant, option or other right to acquire such securities that it receives directly from the CompanyCompany (including equity awards granted as compensation and approved by the Board of Directors), or (Div) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any case of the Investor Nominated Directors permitted by the terms hereof to serve on such BoardGroup, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect pursuant to the preemptive rights provided in Section 4.6. In addition, nothing in this Section 4.5 shall preclude any Investor or its Affiliates or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ Corporation (a) from exercising the voting election of any director and other rights granted to the Board;
(iv) call or seek Investors pursuant to call a meeting of the Common Stockholders of the Company this Agreement or any of the Company’s subsidiaries Transaction Documents or initiate (b) in the case of any stockholder proposal for action proposed merger, sale of assets or similar transaction that has been approved or recommended by the Common Stockholders Board of the CompanyDirectors, form, join or in any way participate in the case of a “group” (within tender or exchange offer made without encouragement by or the meaning participation of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors shall send to stockholders a statement that the Board of a plan Directors that (i) recommends approval of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and withoutoffer, or the termination of, (ii) is neutral with respect to such tender or exchange offer) from making an agreement offer to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process Directors, in respect of such transaction, upon terms more favorable to solicit a proposal the Company or its stockholders than those of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Controlother transaction, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementproposed.
Appears in 1 contract
Sources: Investor Agreement (Riedman Corp)
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own Unless approved in advance in writing by at least four and ninetwo-tenths percent (4.9%) thirds of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control directors of the CompanyBoard of Directors of Red Lion, without the prior written approval of the Company, Navy agrees that neither the Investors it nor any of its Affiliates controlled affiliates will, and that it will use its reasonable best efforts to cause its directors and officers not to, directly or indirectly, except as otherwise provided in this Agreement, until the end of the Standstill Period:
(i) acquire, offer directly or propose to acquire or agree to acquireindirectly, Beneficial Ownership beneficial ownership of any Voting Securitiesadditional Red Lion Common Shares or other equity securities of Red Lion, other than Voting Securities acquired (Ai) by exercising any preemptive rights available to Navy or its affiliates or (ii) as a the result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalizationbonus issue, reclassification share subdivision, reverse stock split or similar transaction, transaction (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect avoidance of doubt, that notwithstanding the foregoing Navy and its controlled affiliates may purchase, in the aggregate, a number of Red Lion Common Shares equal to the number they have sold from after Closing (as adjusted for any issuance of equity securities up to a maximum stock split, stock dividend, bonus issue, share subdivision, reverse stock split or similar transaction); enter into arrangements, understandings or agreements (whether written or oral) with, or advise, finance or assist any other person in connection with any of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;foregoing; or
(ii) enter into arrangements, understandings or agree, offer, propose or seek agreements (whether publicly written or otherwiseoral) to enter intowith, or otherwise be involved advise, finance or assist any other person in or part of, connection with any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businessesforegoing; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;or
(iii) other than request, propose or otherwise seek, in each case in a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Actmanner that would require public disclosure, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval amendment or waiver of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing contained in clauses (ii), (iii), (ivi)-(ii) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityabove.
(b) The limitations Unless approved in advance in writing by at least two-thirds of the directors of the Board of Directors of Red Lion, Navy agrees that neither it nor any of its directors, officers or controlled affiliates will, directly or indirectly, except as otherwise provided in Section 5.1(a) shallthis Agreement, upon until the occurrence of any end of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such eventsStandstill Period:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by seek, make or take any Person of a action to solicit or encourage any offer or proposal for any merger, amalgamation consolidation, tender or exchange offer seeking to acquire Beneficial Ownership offer, sale or purchase of fifty percent (50%) assets or more of the outstanding shares of Voting Securities of the Companysecurities or other business combination, restructuring, recapitalization or similar transaction involving Red Lion;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that Investor agrees that, from the Closing date of this Agreement until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) expiration of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the CompanyStandstill Period, neither the Investors it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates, Associates and representatives not to, directly or indirectly, in any manner, acting alone or in concert with others:
(i) acquiresubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, offer as amended (the “Exchange Act”) or propose otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to acquire or agree to acquire, Beneficial Ownership the Board (including by way of any Voting SecuritiesRule 14a-11 of Regulation 14A), other than Voting Securities acquired as expressly permitted by this Agreement;
(Aii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a result “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the CompanyBoard, or (D) recommend or request or induce or attempt to maintain their aggregate percentage interest in induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the Company’s outstanding voting of the Common StockStock or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board; provided, however, that except as set forth in Section 3 and this Section 4, nothing herein shall be interpreted to restrict the Investor shall not be permitted Investor’s ability to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of vote its shares on any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under proposal duly brought before the Company’s 2013 Equity Incentive Plan shareholders as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved Investor determines in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1sole discretion;
(iii) other than seek to call, or to request the call of, a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval special meeting of the election to the Board solely with respect to any Company’s stockholders, or make a request for a list of the Investor Nominated Directors permitted by Company’s stockholders or for any books and records of the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the BoardCompany;
(iv) call or seek take any action (including making any proposal to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action act) by the Common Stockholders of the Company, written consent;
(v) 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 and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of such Securities, or other Common Stock to any voting agreement or arrangement having similar effect unless such agreement or arrangement conforms pooling arrangement, other than to the provisions extent such a group may be deemed to result with the Company or any of its Affiliates or Associates as a result of this Section 5.1Agreement;
(vi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 2 and Section 3 of this Agreement, seek representation to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andBoard;
(viiviii) bring any action acquire or otherwise act agree, offer, seek or propose to contest the validity of this Section 5.1; providedacquire, that nothing in clauses or cause to be acquired, ownership (ii), (iii), (iv) or (viincluding beneficial ownership) of this Section 5.1(a) shall apply to any of the Investor Nominated Director(s) solely in his assets or her capacity as a director business of the Company or any rights or options to actions taken by acquire any such assets or business from any person;
(ix) other than at the Investors direction of the Board seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of their Affiliates to prepare control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Investor Nominated Directors to act Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such capacitytransaction involves a change of control of the Company.
(bx) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, solely with respect to an unsolicited proposal for a transaction thatOpposition Matter, if consummated, would result in a Change of Control;
(iii) on the decision by Investor shall have the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process right to solicit a proposal of the type referred in opposition, and otherwise campaign publicly or privately against, any Opposition Matter and shall be free to engage in Section 5.1(b)(ii) without a Change of Control having occurred communications with shareholders and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.third
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of For so long as (i) such time as an Initial Stockholder Designee is on the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common StockBoard, (ii) a Holder Designee is on the fourth (4th) anniversary hereof Board and the Initial Stockholder constitutes the Majority Approved Holders or (iii) a Change of Control the aggregate Percentage Ownership of the CompanyInitial Stockholder and its Affiliates is equal to or greater than thirty-five percent (35%), and in each case for a six (6) month period thereafter (the “Standstill Period”), the Initial Stockholder will not, and will cause its Affiliates and its and their principals, general partners, officers and employees not to, without the prior written approval consent of a majority of the Company, neither the Investors nor any of its Affiliates willNon-Designated Directors, directly or indirectly, alone or in concert with others:
(i) (A) on or prior to the date that is 90 days following the consummation of the Offer, acquire, offer or propose to acquire or agree publicly announce its intention to acquire, Beneficial Ownership by purchase or otherwise, additional shares of any Voting SecuritiesCommon Stock or direct or indirect rights, other than Voting Securities acquired (A) as a result of the exercise of any rights warrants or obligations set forth in the Standby Purchase Agreement options to acquire, or this Agreementsecurities exchangeable for or convertible into, Common Stock or (B) pursuant to a stock splitfollowing the date that is 90 days following the expiration of the Offer (as may be extended), stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree publicly announce its intention to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 by purchase or otherwise, additional shares of Common Stock authorized or direct or indirect rights, warrants or options to acquire, or securities exchangeable for issuance or convertible into, Common Stock that would increase the Initial Stockholder’s and its Affiliates’ aggregate Percentage Ownership, calculated in accordance with the beneficial ownership rules set forth in Rule 13d-3 promulgated under the Company’s 2013 Equity Incentive Plan as Exchange Act, to more than forty-five percent (45%) (any such additional shares of Common Stock acquired, the date hereof“Additional Shares”); provided that the Initial Stockholder and its Affiliates shall be permitted to make private offers to the Board to acquire additional shares of Common Stock or Convertible Preferred Stock;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” solicitation of “proxies” proxies to vote, vote or seek to advise or influence in any manner whatsoever any person or entity with respect to the voting election of any director voting securities of the Company, other than in support of the Company’s nominees;
(iii) make, announce, disclose publicly, propose publicly or induce or attempt to the Boardinduce any other person to initiate any stockholder proposal;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities securities of the Company;
(iiv) on the decision by the Board acquire, offer to acquire or a duly constituted committee agree to acquire, alone or in concert with others, any of the Board assets of the Company or any of its Affiliates; or
(avi) seek to solicit one propose to the stockholders any merger, business combination, restructuring, recapitalization or more proposals for a other transaction thatto or with the Company; or
(vii) make any public request or proposal to amend, if consummated, would result in a Change waive or terminate any provision of Control or this Section 2.4.
(b) Notwithstanding Section 2.4(a), the Initial Stockholder and its Affiliates shall not be prohibited from making any non-public proposal to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction thatthe Board.
(c) Notwithstanding Section 2.4(a), if consummatedat any time during the Standstill Period, (i) the Company enters into any agreement with any third party that would result in a Change of Control;
, (iiiii) on the decision by the Board to recommend that stockholders approve any action proposed by an unaffiliated third party commences a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such bona fide tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Companywhich, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without if consummated, would constitute a Change of Control having occurred and without, the Board either accepts such offer or fails to recommend that its stockholders reject such offer within ten (10) business days from the termination of, an agreement date of commencement of such offer or (iii) the Company announces a process seeking to effect solicit a third party to enter into a transaction which is likely to result in a Change of Control, or then the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to standstill restrictions set forth in Section 5.1(b)(ii2.4(a) without shall terminate.
(d) Notwithstanding Section 2.4(a), if at any time during the Standstill Period, an unaffiliated third party commences a bona fide proxy solicitation which, if successful, would constitute a Change of Control having occurred and without an agreement to effect (a Change of Control“Proxy Contest”), (x) then the withdrawal or termination or failure of the solicitation referred to restrictions set forth in Section 5.1(b)(iiiSections 2.4(a)(ii), (yiii) the termination and (iv) shall cease to apply, but only in respect of support of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except Company’s nominees and opposition to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable such third party’s nominees for so long as and only to the extent provided in this Agreementthat Proxy Contest.
Appears in 1 contract
Standstill. (a) The Investors hereby agree 1. Abgenix agrees that for a period of [_________] from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stockdate hereof, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the CompanyAbgenix will not, without the prior written approval of the Company, neither the Investors nor will it permit any of its Affiliates willaffiliates or associates to, directly from and after the date that such person becomes an affiliate or indirectly:
associate, unless in any such case specifically invited to do so by the Board of Directors of ImmunoGen (i1) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted announce an intention to acquire, offer or propose to acquire acquire, solicit an offer to sell or agree to acquireacquire by purchase, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to by gift, by joining a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan partnership, limited partnership, syndicate or other "group," as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined such term is used in Section 13(d13(d)(3) of the Exchange ActAct (such term to have such meaning throughout this Section D) or otherwise, merger any (i) material assets, businesses or properties of ImmunoGen other business combination relating than in the ordinary course of business, or (ii) shares of ImmunoGen common stock, or any other ImmunoGen securities convertible into, exchangeable for or exercisable for ImmunoGen common stock (all such securities, collectively, "Voting Securities"), except that the foregoing shall not apply to all or part the purchase of the Company Shares pursuant to this Letter Agreement, (2) solicit, or participate in any "solicitation" of its subsidiaries "proxies" or become a "participant" in any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” "election contest" (as such terms are defined under or used in Regulation 14A under the Exchange Act, disregarding clause (ivthese terms to have such meaning throughout this Agreement) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of ImmunoGen, (3) initiate, publicly propose or otherwise solicit stockholders for the Investor Nominated Directors permitted by the terms hereof approval of, one or more stockholder proposals with respect to serve on such Board, makeImmunoGen, or in induce any way participate inother person to initiate any stockholder proposal, (4) seek to place any such “solicitation” representative on the Board of “proxies” to voteDirectors of ImmunoGen, or seek to advise or influence have called any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” ImmunoGen; (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v5) deposit any Voting Securities of the Company into in a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company them to any a voting agreement or other agreement or arrangement with respect to the voting of such Voting Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii)6) otherwise act, (iv) alone or (vi) in concert with others, to seek to control the management, Board of this Section 5.1(a) shall apply Directors, policies or affairs of ImmunoGen or solicit, publicly propose, seek to the Investor Nominated Director(s) solely in his effect or her capacity as a director of the Company or to actions taken by the Investors or negotiate with any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, other person with respect to an unsolicited proposal for a any form of business combination or other extraordinary transaction thatwith ImmunoGen or any restructuring, if consummatedrecapitalization or similar transaction with respect to ImmunoGen, would result in a Change or solicit, make or publicly Portions of Control;
(iii) on this Exhibit were omitted and have been filed separately with the decision by Secretary of the Board to recommend that stockholders approve any action proposed by a Person Commission pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 Company's application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement1934.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that JCP agrees that, from the Closing date of this Agreement until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) expiration of the outstanding Common Stock, Standstill Period (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Companyas defined below), neither the Investors it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates (as defined below) not to, directly or indirectly, in any manner, acting alone or in concert with others:
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce 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 withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(iv) 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 to the extent such a group may be deemed to result with the Company or any of its Affiliates or Associates as a result of this Agreement;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(viii) other than at the direction of the Board or any committee thereof and except in connection with an Opposition Matter (as defined below), seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, Beneficial Ownership directly or indirectly, by purchase or otherwise, beneficial ownership of any Voting Securities, other than Voting Securities acquired (A) as a result interests in any of the exercise of any rights Company’s indebtedness or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, Common Stock of the Company representing in the aggregate (Camongst JCP and its Affiliates and Associates) directly from the Company, or (D) to maintain their aggregate percentage interest in excess of 9.9% of the Company’s outstanding Common Stock; provided, however, that the Investor nothing herein shall not be permitted to acquire, offer or propose prevent JCP from confidentially seeking a waiver to acquire or agree to acquire, Beneficial Ownership in excess of any Voting Securities to account for the dilutive effect 9.9% of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofoutstanding Common Stock;
(iix) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intodisclose publicly, or otherwise privately in a manner that could reasonably be involved in or part ofexpected to become public, any acquisition transactionintention, including a proposed negotiated private sale plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;3; or
(iiixii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Actenter into any agreement, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to arrangement or understanding concerning any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, foregoing (other than this Agreement) or in any way participate in, any such “solicitation” of “proxies” to vote, encourage or seek to advise or influence solicit any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or undertake any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityforegoing activities.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below As used in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such eventsAgreement:
(i) on the commencement (as defined terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 14d-2 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company”);
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Settlement Agreement (Jamba, Inc.)
Standstill. (a) The Investors hereby agree that from ▇▇▇▇▇▇▇ Group agrees that, for the Closing until period commencing on the earliest date of this Agreement and ending on the earlier of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) 30th calendar day preceding the opening of the outstanding Common Stock, nomination window for submission of director nominees at the Company’s 2016 Annual Meeting and (ii) a material breach by the fourth Company of its obligations under this Agreement which is not cured within 5 business days after written notice from the ▇▇▇▇▇▇▇ Group (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company"Standstill Period"), neither the Investors it nor any of its Affiliates will, and it will cause each of its Affiliates not to, directly or indirectly, in any manner other than pursuant to Section 6(c), acting alone or in concert with others:
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (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 (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any "solicitation" (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a "participant in a solicitation" (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce 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 withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(iv) 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 a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(viii) other than at the direction of the Board, seek, propose, or make any statement (other than to one or more members of the Board or management or its advisors or agents (including, without limitation, any firm engaged by the CDC)) with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, Beneficial Ownership directly or indirectly, by purchase or otherwise, beneficial ownership of any Voting Securities, other than Voting Securities acquired (A) as a result interests in any of the exercise of any rights Company’s indebtedness or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, Common Stock of the Company representing in the aggregate (Camongst the ▇▇▇▇▇▇▇ Group and its Affiliates) directly from the Company, or (D) to maintain their aggregate percentage interest in excess of 9.9% of the Company’s outstanding Common Stock; provided, however, that nothing herein shall prevent the Investor shall not be permitted to acquire, offer or propose ▇▇▇▇▇▇▇ Group from confidentially seeking a waiver to acquire or agree to acquire, Beneficial Ownership in excess of any Voting Securities to account for the dilutive effect 9.9% of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofoutstanding Common Stock;
(iix) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intodisclose publicly, or otherwise privately in a manner that could reasonably be involved in or part ofexpected to become public, any acquisition transactionintention, including a proposed negotiated private sale plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution3; or
(vxii) on the occurrence of enter into any material breach by the Company of agreement, arrangement or understanding concerning any of its material obligations under the foregoing (other than this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors or encourage or solicit any person to the Company setting forth such alleged breach with specificity. Upon (u) undertake any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementforegoing activities.
Appears in 1 contract
Sources: Settlement Agreement (Sandell Asset Management Corp)
Standstill. (a) The Investors hereby agree that Except as otherwise provided in this Agreement, from the Closing date hereof until the earliest earlier of (x) the fifth anniversary of the date of the Purchase Agreement and (y) the date the Total Ownership Amount is less than the Release Share Total (the "Standstill Period"), without the prior approval of a majority of the Non-Investor Directors, no Investor-Related Party shall, directly or indirectly, (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) acquire voting securities of the Company that would result in the Investor Group Beneficially Owning, in the aggregate, a percentage of the Outstanding Shares in excess of the sum of (A) the Closing Ownership Percentage plus (B) 1% (excluding any changes to ownership resulting solely as a result of a reduction in the number of shares of Common Stock outstanding due to the repurchase of shares of Common StockStock by the Company), (ii) the fourth (4th) anniversary hereof make, solicit, initiate, encourage or (iii) participate in any offer or proposal that would reasonably be expected to result in a Change of Control or, if made by a Person other than an Investor-Related Party or a group of which an Investor-Related Party is a member, to constitute a Third Party Bid, (iii) engage in any "solicitation" of "proxies" (as such terms are used in the Company, without proxy rules promulgated by the prior written approval of SEC under the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting SecuritiesExchange Act), other than Voting Securities acquired (A) as a result for the benefit of the exercise Investor Directors, if and to the extent the Investor Group is entitled to designate any Investor Directors hereunder, or the other Director nominees of any rights or obligations set forth in the Standby Purchase Agreement or this AgreementBoard, (Biv) pursuant become part of a "group" (other than a group that includes only members of the Investor Group) that would be required to file a stock split, stock dividend, recapitalization, reclassification Schedule 13D with the SEC disclosing an intention to change or similar transaction, (C) directly from influence the control of the Company, or (Dv) grant any proxies, transfer shares to maintain their aggregate percentage interest in any voting trust or enter into any voting agreement (other than (x) among the Company’s outstanding Common Stock; provided, however, that members of the Investor shall not be permitted Group, (y) pursuant to acquirethis Agreement or (z) in respect of proxies voting in favor of a slate of Directors nominated by the Board). Notwithstanding the foregoing, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum member of the 4,329 shares Investor Group may propose, or engage in discussions with the Board regarding, (I) a possible Change of Common Stock authorized for issuance under Control transaction involving the Company’s 2013 Equity Incentive Plan as Investor Group or (II) a possible acquisition involving members of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) Investor Group of the Exchange Act, merger securities or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or its subsidiaries, provided that such discussions are not, and shall not be, publicly disclosed by any member of its subsidiaries the Investor Group or any other Investor-Related Party or any of their respective businesses; providedrespresentatives and would not in the written opinion of counsel to the Company reasonably satisfactory to the Investor Group (it being agreed and acknowledged that Testa, howeverHurwitz & Thibeault, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will LLP is satisfactory counsel) be permitted if the purchasing party agrees required ▇▇ ▇pp▇▇▇▇▇▇▇ la▇ ▇▇ ▇▇ ▇ublicly disclosed.
(b) Nothing in writing to be bound by the provisions of this Section 5.1;
3.01 shall (iiii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including prohibit or restrict any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any member of the Investor Nominated Directors permitted by the terms hereof Group from responding to serve on such Board, make, or in any way participate in, inquiries from any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect as to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement Person's intention with respect to the voting of any Common Stock Beneficially Owned by such SecuritiesPerson, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to (ii) restrict the provisions right of this Section 5.1;
(vi) seek representation each Investor Director on the Board or a change any committee thereof to vote on any matter as such individual believes appropriate or the manner in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the which an Investor Nominated Director(s) solely Director may participate in his or her capacity as a director in deliberations or discussions at meetings of the Board or as a member of any committee thereof, (iii) prohibit any member of the Investor Group from acquiring securities of the Company issued by way of conversion, dividend, stock split or to actions taken by the Investors other distribution or any exchange, recapitalization or reclassification or similar transaction in respect of their Affiliates to prepare securities which such member of the Investor Nominated Directors Group is permitted to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations Beneficially Own under this Agreement, which breach has not been remedied within thirty or (30iv) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to except as provided in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) 2.04, restrict the ability of the outstanding Voting Securities members of the CompanyInvestor Group from voting for or against or abstaining from any vote in connection with any Change in Control transaction or Third Party Bid, (v) prevent the withdrawal members of all pending proposals referred the Investor Group from selling their Acquisition Shares or (vi) prohibit any member of the Investor Group from complying with applicable law.
(c) Each member of the Investor Group shall be fully released from the provisions of this Section 3.01 in Section 5.1(b)(iithe event that (i) without a Change of Control having occurred and without, or the termination of, an agreement Board fails to effect a Change of Control, or the decision appoint Mr. LD as Chairman of the Board or a duly constituted committee of at any time that Mr. LD has the Board to reject all such proposalsright to, (w) the abandonment and has exercised his right to, be so appointed by the Board in accordance with Section 2.07 and such appointment is not prohibited by the applicable listing or a duly constituted committee corporate governance standards of the NYSE or any applicable law, rule or regulation, (ii) at any time during the two-year period after the date hereof, an Investor Director then serving on the Board of a process dies, resigns (other than as required by Section 2.03) or is removed or disqualified and the Board fails to solicit a proposal appoint to the Board any Investor Director designated by the Investor Group to be so appointed by the Board in accordance with Section 2.01(c)(ii) as successor to such Investor Director and such appointment is not prohibited by the applicable listing or corporate governance standards of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of ControlNYSE or any applicable law, (x) the withdrawal rule or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv)regulation, or (ziii) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except Board fails to appoint Mr. LD to the extent then suspended Board as an Investor Director in accordance with Section 2.01(b) and maintain Mr. LD on the Board as an Investor Director in accordance with the applicable provisions of Sections 2.01 and 2.03 at any time during the three-year period after the date hereof (other than as a result of Mr. LD's death or resignation or the prohibition, by the applicable listing or corporate governance standards of the NYSE or any other event specified in this Section 5.1(bapplicable law, rule or regulation, of Mr. LD's appointment to or continuation of service on the Board as an Investor Director)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Ionics Inc)
Standstill. Until the Termination Date (a) The Investors hereby agree that from subject to the Closing until Company having complied with the earliest first sentence of Section 1), the Circumference Group will not, and will cause each of its Affiliates and Associates to not, directly or indirectly, in any manner:
(i) such time (A) acquire, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%a single “person” under Section 13(d) of the outstanding Common StockExchange Act (as defined below)), through swap or hedging transactions, other Synthetic Positions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership (including notional shares associated with any Derivatives or other Synthetic Positions) of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities) such that after giving effect to any such Acquisition, the Circumference Group or any of its Affiliates and Associates holds, directly or indirectly, in excess of 9.9% of the Voting Securities, or (B) acquire, or offer, seek or agree to acquire, whether by purchase or otherwise, any interest in any indebtedness of the Company;
(ii) (A) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the fourth Board or (4thunless the Board recommends in favor of such removal) anniversary hereof take any action in respect of the removal of any director, (B) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or the election or removal of any director (in each case other than pursuant to Section 1), (C) submit, or seek or knowingly encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (D) request, or knowingly initiate, knowingly encourage or participate in any request, to call a Stockholder Meeting, (E) publicly seek to amend any provision of the Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws (the “Bylaws”) or other governing documents of the Company (each as may be amended from time to time), or (F) take any action similar to the foregoing with respect to any subsidiary of the Company;
(iii) solicit any proxy, consent or other authority to vote of stockholders (other than from Circumference Group and its Affiliates and Associates with respect to shares of Voting Securities which the Circumference Group or such Affiliate or Associate has the right or ability to vote) or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a Change “participant” (as such term is defined in Instruction 3 to Item 4 of Control Schedule 14A promulgated under the Exchange Act) in, or knowingly assist, advise, initiate, knowingly encourage any person (other than the Company or, solely with respect to shares of Voting Securities which the Circumference Group or such Affiliate or Associate has the right or ability to vote, the members of the Circumference Group and its Affiliates and Associates) to conduct (or seek to influence any person other the Company or its Affiliates or Associates in the conduct of), any “solicitation” of any proxy, consent or other authority to vote any Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the foregoing shall not restrict the Circumference Group or its Affiliates or Associates from stating how they intend to vote with respect to an Extraordinary Transaction, if any, that has been publicly submitted for the approval of the Company’s stockholders and the reasons therefor;
(iv) (A) grant any proxy, consent or other authority to vote with respect to any matters for any Stockholder Meeting or (B) deposit any securities of the Company in any voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of any such securities of the Company, in each case of clauses (A) and (B) other than (1) customary brokerage accounts, margin accounts, prime brokerage accounts and similar accounts (in each case so long as the Circumference Group or its Affiliates or Associates retains control with respect to the securities deposited in such accounts), (2) granting any proxy, consent or other authority to vote in any solicitation approved by the Board and consistent with the recommendation of the Board, and (3) granting any proxy, consent or other authority to vote in any solicitation in connection with any matter for which the Circumference Group or its Affiliates or Associates retains voting discretion pursuant to, and in accordance with, Section 2(b);
(v) knowingly encourage, advise or seek to influence any person, or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no,” or similar campaign), in each case other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter or otherwise in connection with an Extraordinary Transaction that has been publicly submitted for the approval of the Company’s stockholders; provided, however, that the foregoing shall not restrict the Circumference Group or its Affiliates or Associates from stating how they intend to vote with respect to an Extraordinary Transaction, if any, that has been publicly submitted for the approval of the Company’s stockholders and the reasons therefor;
(vi) without the prior written approval of the Company, neither separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose, suggest or recommend publicly (or in a manner such that the Investors nor Circumference Group is required under applicable law, rule or regulation to disclose publicly) or participate in, effect or seek to effect any of its Affiliates willExtraordinary Transaction or knowingly encourage any other third party to participate in, directly effect or indirectly:
seek to effect any Extraordinary Transaction; provided, that nothing in this Section 2(a)(vi) shall be interpreted to prohibit the Circumference Group from (i1) acquireproposing, offer suggesting or propose recommending any Extraordinary Transaction privately to acquire or agree the Company so long as any such action is not publicly disclosed by the Circumference Group (and is made by the Circumference Group in a manner that would not reasonably be expected to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of require the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from public disclosure thereof by the Company, the Circumference Group or any other person), (D2) stating how they intend to maintain their aggregate percentage interest in vote with respect to an Extraordinary Transaction, if any, that has been publicly submitted for the approval of the Company’s outstanding Common Stock; providedstockholders and the reasons therefor or (3) tendering shares, howeverreceiving consideration or other payment for shares, that or otherwise participating in any publicly announced Extraordinary Transaction on the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum same basis as other stockholders of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(iivii) enter into or agreeform, offerjoin, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part encourage the formation of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting SecuritiesSecurities (other than a group that includes all or some of the members of the Circumference Group or its Affiliates or Associates, but does not include any other entities or persons that are not members of the Circumference Group as of the date hereof; provided that nothing herein shall limit the ability of an Affiliate of the Circumference Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement);
(vviii) deposit make or publicly advance any Securities request or proposal to amend, modify or waive any provision of this Agreement, or (other than in connection with any legal proceeding that was not initiated by Circumference Group or its Affiliates or Associates) take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement; provided that the Circumference Group may make confidential requests to the Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Circumference Group and is made by the Circumference Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Circumference Group or any other person;
(ix) make a request for a list of the Company’s stockholders or for any books and records of the Company into a voting trust unless such voting trust is bound by the provisions of this pursuant to Section 5.1, or subject the Securities 220 of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition General Corporation Law of the Board or number State of directors elected by Delaware (the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv“DGCL”) or (vi) of this Section 5.1(a) any other statutory or regulatory provisions providing for stockholder access to books and records; provided that Fox shall apply to the Investor Nominated Director(s) solely not be prohibited from making any such request in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(iix) make any public proposal with respect to (A) any change in the number or identity of directors of the Company or the filling of any vacancies on the decision by Board other than as provided under Section 1 of this Agreement or (B) any other change to the Board or a duly constituted committee of the Board (a) to solicit one Company’s management, or more proposals for a transaction that, if consummated, would result in a Change of Control corporate or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Controlgovernance structure;
(iiixi) on enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the decision by the Board foregoing (other than this Agreement) or (in each case, intentionally) encourage, assist, solicit or seek to recommend that stockholders approve cause any person to undertake any action proposed by a Person pursuant to the filing of a preliminary proxy statement inconsistent with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement2.
Appears in 1 contract
Standstill. Each Holder hereby agrees that, from the Closing Date until the Standstill Termination Date, unless an exemption or waiver is otherwise approved in advance in writing by the Board, such Holder shall not, and shall cause the Restricted Party not to:
(a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof purchase or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) otherwise acquire, offer or propose to acquire acquire, or solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, Beneficial Ownership of any Voting Securities, other than Voting Capital Stock or any Derivative Securities acquired (A) as a result excluding shares and securities received by way of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, stock reclassification or similar transaction, (C) directly from the Company, other distributions or (D) offerings made available on a pro rata basis to maintain their aggregate percentage interest in the Company’s outstanding Common stockholders) if, after giving effect thereto, the Holders and the Restricted Party would collectively Beneficially Own, in the aggregate, an amount of Capital Stock, including any Derivative Securities on an as-exercised, converted or exchanged basis, as applicable, in excess of the Stockholder Threshold; provided, however, that that, if as a result of a reduction in the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales number of shares of Common Stock outstanding due to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound repurchase of shares of Common Stock by the provisions Company, the Holders and the Restricted Party collectively Beneficially Own, in the aggregate, an amount of Capital Stock, including any Derivative Securities on an as-exercised, converted or exchanged basis, as applicable, in excess of the Stockholder Threshold, the Holders and the Restricted Party shall not be in violation of this Section 5.13.1(a) so long as the Holders and the Restricted Party do not take any of the actions referred to in the first clause of this Section 3.1(a);
(iiib) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, directly or indirectly, alone or in concert with others (including by or through any such group), any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to votevote Common Stock or other Capital Stock of the Company or to provide or withhold consents with respect to Common Stock or other Capital Stock of the Company, whether subject to or exempt from the proxy rules, or seek to advise or influence any person Person or entity with respect to the voting election of, or the providing or withholding consent with respect to, any Common Stock or other Capital Stock of the Company; provided, however, that the foregoing will not be deemed to restrict or limit in any director manner in which any of the Holders or the Restricted Party votes any of its respective shares of Common Stock or Capital Stock, directly or by proxy, subject to compliance with the Boardother terms and conditions of this Agreement;
(ivc) call except as permitted by Section 3.2, either directly or seek indirectly in concert with others (including by or through any group) make any offer with respect to, or make or submit a proposal with respect to, or ask or request any other Person to call make an offer or proposal with respect to, any transaction that would, if consummated, be reasonably likely to result in a meeting change of control of the Common Stockholders of Company, including a merger, business combination, restructuring, reorganization, recapitalization, tender or exchange offer or asset disposition involving the Company or any of its Affiliates; provided, however, that the Holders and the Restricted Party shall be permitted to (i) vote on any such transaction in accordance with the terms and conditions of this Agreement and (ii) tender into any tender offer or exchange offer not commenced by a Holder or the Restricted Party if either (A) the Board recommends (by majority vote) that the stockholders of the Company tender their shares in response to such offer or does not recommend against the tender offer or exchange offer within 10 Business Days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (B) the Board later publicly recommends (by majority vote) that the stockholders of the Company tender their shares in response to such offer;
(d) except as provided in this Agreement, either directly or indirectly in concert with others (including by or through any group) seek representation on the Board or the board of directors (or equivalent governing body) of any of the Company’s subsidiaries controlled Affiliates, seek to remove any members of the Board or initiate expand or reduce the size of the Board or otherwise act alone or in concert with others (including by or through any stockholder proposal for action by group) to seek control of the Common Stockholders Board or the board of directors (or equivalent governing body) of any of the Company, ’s controlled Affiliates;
(e) form, join join, knowingly encourage the formation of or knowingly engage in any way discussions relating to the formation of, or participate in in, a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and for purposes of seeking control, or influencing the rules and regulations thereunder) with respect to any Voting Securities;control or management of, the Company; or
(vf) deposit either directly or indirectly in concert with others (including by or through any Securities of group) publicly announce any intention, or enter into or disclose any plan or arrangement inconsistent with the foregoing (including publicly making a request that the Company into a voting trust unless such voting trust is bound by or the Board waive, amend or terminate any provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii3.1), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby For a period ending on the date on which Quicksilver ceases to hold at least 10% of the units, Quicksilver will agree to the following standstill provisions that from the Closing until the earliest of prohibit Quicksilver from:
(i) such time engaging in any hostile/takeover activities (including tender offer; soliciting proxies or written consents - other than as recommended by the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, Board);
(ii) acquiring or proposing to acquire additional units, securities or properties of BreitBurn, except pursuant to a distribution, reclassification or reorganization involving BreitBurn or its units or other securities approved by the fourth (4th) anniversary hereof or Board;
(iii) calling a Change of Control special meeting of the Company, without unitholders; or
(iv) proposing to remove the GP or voting for removal of the GP other than in accordance with paragraph 12.
(b) Specifics. Without the prior written approval consent of the CompanyBreitBurn, neither the Investors nor any of its Affiliates willQuicksilver will not, directly or indirectly:
(i) acquireacquire any securities or property of BreitBurn (or its affiliates), offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) except pursuant to a stock split, stock dividend, recapitalizationdistribution, reclassification or similar transaction, (C) directly from reorganization involving BreitBurn or its units or other securities approved by the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofBoard;
(ii) propose to enter into (directly or agreeindirectly) any merger/consolidation/recap/business combination/partnership/JV, offeretc. involving BreitBurn (or its affiliates), propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” except as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1hereby;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, make or in any way participate in, in any such “solicitation” solicitation of “proxies” proxies (per SEC’s proxy rules) or written consents to vote, or /seek to influence/advise or influence any person or entity others with respect to the voting election of any director to the BoardBreitBurn’s (or its affiliates’) voting securities;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way /join/participate in a “group” (within the meaning of Section 13(d)(3per SEC’s Sec 13(d) of the Exchange Act and the rules and regulations thereunderrules/defs) with respect to any Voting Securitiesvoting securities of BreitBurn (or its affiliates);
(v) deposit any Securities act to seek to control or influence the management/Board/policies of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, BreitBurn except through Quicksilver’s Board designees or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1as provided below;
(vi) seek representation on propose to remove the Board or a change in the composition GP of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the InvestorBreitBurn or, other than as expressly permitted pursuant in accordance with paragraph 12, vote to this Agreement; andremove the GP;
(vii) bring publicly disclose any action or otherwise act to contest intent/plan/arrangement inconsistent with this agreement; or
(viii) advise/assist/encourage others in connection with the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityabove.
(bc) The limitations provided in Section 5.1(a) shallQuicksilver will agree not to sell/transfer its units without the prior written consent of BreitBurn, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such eventsexcept:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of to a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or party that would not own more than 20% of the outstanding shares of Voting Securities of the Companyunits after such transfer;
(ii) on the decision in connection with a business combination approved by the Board or a duly constituted committee of and/or the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of ControlBreitBurn unitholders;
(iii) on the decision by the Board in a pledge of any voting securities to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;financial institution/brokerage firm; or
(iv) on in an underwritten offering where the adoption by units will be widely distributed or would not result in any purchaser in such offering owning more than 20% of the outstanding units after the offering.
(d) The foregoing provisions shall not, and are not intended to:
(i) prohibit Quicksilver from privately communicating with, including making any offer or proposal to, the Board;
(ii) restrict in any manner how Quicksilver votes its units, except as provided in paragraphs 11 and 12;
(iii) restrict the manner in which Quicksilver’s designees to the Board (A) may vote on any matter submitted to the Board or the unitholders, or (B) participate in deliberations or discussions of Directors the Board (including making suggestions or raising issues to the Board) in their capacity as members of a plan the Board, or (C) may take actions required by their exercise of liquidation legal duties and obligations as members of the Board or dissolutionrefrain from taking any action prohibited by their legal duties and obligations as members of the Board; or
(viv) on restrict Quicksilver from selling or transferring any of its units to any affiliate or successor of Quicksilver which agrees to be bound by the standstill agreement.
(e) The provisions contained in paragraph 9 shall immediately and automatically be suspended upon the increase or acceleration of a material financial obligation of BreitBurn that results from the breach of a material provision thereof or the occurrence of any a material event of default thereunder, unless such breach is caused solely by the Company action or inaction of any of Quicksilver or its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementnominated directors.
Appears in 1 contract
Sources: Settlement Agreement (BreitBurn Energy Partners L.P.)
Standstill. Prior to the Termination Date, except as otherwise provided in this Agreement (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companyincluding Section 11(a)(i)), without the prior written approval consent of the CompanyBoard, neither the Investors nor any of Privet shall not, and shall instruct its Affiliates willnot to, directly or indirectly (in each case, except as permitted by this Agreement):
(i) subject to Section 1(e), acquire, offer to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis including, for the avoidance of doubt, exercise of any subscription rights granted to Privet), directly or indirectly:
(i) acquire, offer whether by purchase, tender or propose to acquire exchange offer, through the acquisition of control of another person, by joining a group, through swap or agree to acquirehedging transactions or otherwise, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result voting securities of the exercise of Company or any voting rights or obligations set forth decoupled from the underlying voting securities which would result in the Standby Purchase Agreement ownership or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Companycontrol of, or (D) to maintain their aggregate percentage other beneficial ownership interest in, 10.0% or more than of the then-outstanding shares of the Common Stock in the Company’s outstanding Common Stockaggregate (the “Ownership Cap”); provided, however, that the Investor shall Board may increase the Ownership Cap by an affirmative vote of a majority of the Board; or (ii) sell its shares of Common Stock other than in open market sale transactions where the identity of the purchaser is not known;
(i) other than pursuant to Section 1(i) of this Agreement, nominate, give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be permitted elected; (ii) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to acquirethe Company’s directors; (iii) submit any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) knowingly initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) form, join or in any way knowingly participate in any group or agreement of any kind with respect to any voting securities of the Company in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with Privet or one or more of its Affiliates and Associates that agree to be bound by the terms and conditions of this Agreement);
(d) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, arrangement or agreement solely among Privet and its Affiliates and otherwise in accordance with this Agreement);
(e) seek publicly, alone or in concert with others, to amend any provision of the Company’s charter or bylaws;
(f) demand an inspection of the Company’s books and records;
(g) engage or continue to engage or use any private investigations firm or other person to investigate any of the Company’s directors, officers or employees or any of the Company’s Representatives;
(h) effect or seek to effect, offer or propose to acquire effect, cause or agree participate in, or in any way assist or facilitate any other person to acquireeffect or seek, Beneficial Ownership offer or propose (other than directly to the Board provided that such proposal does not require Privet to amend its Schedule 13D) to effect or participate in, any (i) material acquisition of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum assets or businesses of the 4,329 shares Company or any of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
its subsidiaries; (ii) enter into tender offer or agree, exchange offer, propose or seek (whether publicly or otherwise) to enter intomerger, or otherwise be involved in or part ofacquisition, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger share exchange or other business combination relating involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any material portion of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iiii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Actenter into any negotiations, disregarding clause (iv) of Rule 14a-1(1)(2) and including agreements or understandings with any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election Third Party with respect to the Board solely foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the Investor Nominated Directors permitted by foregoing, or otherwise take or cause any action inconsistent with any of the terms hereof to serve on such Board, make, foregoing;
(j) publicly make or in any way participate in, advance publicly any such “solicitation” of “proxies” to vote, request or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of proposal that the Company or the Board amend, modify or waive any provision of this Agreement; or
(k) take any action challenging the validity or enforceability of this Section 3 or this Agreement unless the Company is challenging the validity or enforceability of this Agreement. Nothing in this Section 3 shall be deemed to (i) prohibit Privet or its Affiliates from communicating privately with the Company’s subsidiaries directors, officers, shareholders and Representatives so long as such private communications would not be reasonably determined, after consultation with outside counsel, to trigger public disclosure obligations for any party or initiate would not circumvent any stockholder proposal for action by the Common Stockholders of the CompanyPrivet’s obligations under Sections 3(a) through 3(k) hereof, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) impose any restriction on a Privet Designee discharging her or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity fiduciary duties as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on prohibit Privet from making any disclosure required by rule, law, regulation or legal process or as requested by regulatory or judicial authority provided that (A) any such disclosures by Privet or its Affiliates complies with all existing confidentiality obligations of Privet and the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement Privet Designee with respect to the commencement of a proxy or consent solicitation subject Company and (B) this clause (iii) would not be used to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material circumvent Privet’s obligations under this Agreement, which breach has not been remedied within thirty (30Sections 3(a) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (uthrough 3(k) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementhereof.
Appears in 1 contract
Sources: Settlement Agreement (Potbelly Corp)
Standstill. (a) The Investors As of the date hereof, you hereby represent and warrant to the Company that neither you nor any of your Representatives acting on your behalf or affiliates owns any securities of the Company. You agree that from beginning on the Closing until date hereof and ending on the earliest of (x) one year from the date of this letter agreement, (y) the time at which the Company enters into a definitive agreement with respect to (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths acquisition, directly or indirectly, of more than fifty percent (4.950%) of the Company’s outstanding Common Stock, common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) or more than fifty percent (50%)of the assets of the Company and its subsidiaries on a consolidated basis or (ii) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction (provided that, in the fourth case of any transaction covered by this clause (4thii), immediately following such transaction, any person (or the direct or indirect shareholders of such person) anniversary hereof or group will beneficially own more than fifty percent (iii50%) a Change of Control of the Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) of the Company or the surviving parent entity in such transaction), without and (z) a person or group (I) acquires (whether via tender offer, exchange offer or otherwise) or (II) has commenced a tender offer or exchange offer under Rule 14(d) of the prior written approval 1934 Act that, if completed in accordance with its terms, would result in the acquisition of, more than fifty percent (50%) of the Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) (the “Standstill Period”), unless specifically invited in writing by the Board of Directors of the Company (or by a Representative of the Company on behalf of the Board of Directors), neither the Investors you nor any of its Affiliates willyour affiliates who receive Evaluation Material and are acting on your behalf or IAC/InterActiveCorp October 14, 2019 on behalf of other persons acting in concert with you will in any manner, directly or indirectly:
: (ia) acquireeffect or seek, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intoeffect, or otherwise be involved announce any intention to effect or cause or participate in or part ofin any way knowingly assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition transactionof any securities (or beneficial ownership thereof), including a proposed negotiated private sale of its shares of Common Stock or rights or options to a single purchaser acquire any securities (or a “group” as defined in Section 13(d) of the Exchange Actbeneficial ownership thereof), merger or other business combination relating to all any material assets, indebtedness or part businesses of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or any acquisition transaction for all or part assets of the Company or the subsidiaries constituting a significant portion of the consolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its subsidiaries or any of their respective businessesaffiliates; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iiib) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within as defined under the meaning ▇▇▇▇ ▇▇▇) with respect to the Company or otherwise act in concert with any person in respect of Section 13(d)(3any such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Exchange Act and Company or to obtain representation on the rules and regulations thereunderBoard of Directors of the Company; (d) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party (other than your Representatives) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1foregoing; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) the foregoing obligations shall not apply to any acquisition, either directly or indirectly, of securities of a party or any of a party’s subsidiaries by any employee benefit or similar plan of the Investor Nominated Director(sother party or such other party’s Representatives that does not have knowledge of, or access to, any Evaluation Material or Discussion Information (so long as such acquisition was not directed by a party or any of its Representatives that have knowledge of, or access to, any Evaluation Material or Discussion Information). You also agree during the Standstill Period not to request (in any manner that would reasonably be likely to cause the Company to disclose publicly) solely in his or her capacity as a director of that the Company or any of its Representatives, directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, nothing in this paragraph 7 shall, directly or indirectly, prevent or otherwise limit you from initiating or continuing any confidential discussions, requests or communications (including any confidential request to actions taken amend or waive any provision of this paragraph 7) with the Company or its board of directors or at any time making any confidential offer or proposal to the Company or its board of directors relating to any potential transaction, in each case, in such a manner as would not reasonably be expected to require the public disclosure thereof by the Investors Company or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityits Representatives.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from ▇▇▇▇▇▇▇ Group agrees that, for the Closing until period commencing on the earliest date of this Agreement and ending on the earlier of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) 30th calendar day preceding the opening of the outstanding Common Stock, nomination window for submission of director nominees at the Company’s 2016 Annual Meeting and (ii) a material breach by the fourth Company of its obligations under this Agreement which is not cured within 5 business days after written notice from the ▇▇▇▇▇▇▇ Group (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company“Standstill Period”), neither the Investors it nor any of its Affiliates will, and it will cause each of its Affiliates not to, directly or indirectly, in any manner other than pursuant to Section 6(c), acting alone or in concert with others:
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (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 (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce 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 withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(iv) 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 a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) except as specifically provided in SECTION 1 and SECTION 2 of this Agreement, seek to place a representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(viii) other than at the direction of the Board, seek, propose, or make any statement (other than to one or more members of the Board or management or its advisors or agents (including, without limitation, any firm engaged by the CDC)) with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, Beneficial Ownership directly or indirectly, by purchase or otherwise, beneficial ownership of any Voting Securities, other than Voting Securities acquired (A) as a result interests in any of the exercise of any rights Company’s indebtedness or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, Common Stock of the Company representing in the aggregate (Camongst the ▇▇▇▇▇▇▇ Group and its Affiliates) directly from the Company, or (D) to maintain their aggregate percentage interest in excess of 9.9% of the Company’s outstanding Common Stock; provided, however, that nothing herein shall prevent the Investor shall not be permitted to acquire, offer or propose ▇▇▇▇▇▇▇ Group from confidentially seeking a waiver to acquire or agree to acquire, Beneficial Ownership in excess of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any 9.9% of the Company’s subsidiaries or initiate any stockholder proposal for action by the outstanding Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting SecuritiesStock;
(vx) deposit disclose publicly, or privately in a manner that could reasonably be expected to become public, any Securities intention, plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of the Company into a voting trust unless such voting trust is bound by the any provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutionSECTION 3; or
(vxii) on the occurrence of enter into any material breach by the Company of agreement, arrangement or understanding concerning any of its material obligations under the foregoing (other than this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors or encourage or solicit any person to the Company setting forth such alleged breach with specificity. Upon (u) undertake any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementforegoing activities.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing that, until the earliest one year anniversary following the Voting Right Expiration Date (or, in the event of (i) such time as a Standstill Termination Event, January 1, 2022), the Investors shall not, and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of shall cause the outstanding Common Stockentities controlled by them not to, (ii) the fourth (4th) anniversary hereof directly or (iii) a Change of Control of the Companyindirectly, without the prior written approval consent of a majority of the disinterested directors serving on the Company’s Board of Directors or as required pursuant to the terms of the Voting Agreement:
(a) other than pursuant to clause (b) below, 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, or a tender or exchange offer, beneficial ownership of, or any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any equity securities or direct or indirect rights to acquire any equity securities of the Company, neither any securities convertible into or exchangeable for any such equity securities, in each case solely to the Investors nor any of its Affiliates willextent that, directly after giving effect to such acquisition or indirectly:
transaction, either (i) acquirethe Magnetar Investors, offer or propose to acquire or agree to acquiretaken together with their respective Affiliates, Beneficial Ownership of any Voting Securitieswould beneficially own (as determined in accordance with Rule 13d-3 under the Exchange Act), other in the aggregate, greater than Voting Securities acquired (A) as a result 15.0% of the exercise of any rights then outstanding Common Stock or obligations set forth (ii) the White Hat Investor, taken together with its respective Affiliates, would beneficially own (as determined in accordance with Rule 13d-3 under the Exchange Act), in the Standby Purchase Agreement or this Agreementaggregate, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from greater than 5.0% of the Company, or (D) to maintain their aggregate percentage interest in the Company’s then outstanding Common Stock; provided;
(b) enter into any options, howeverputs, that calls, swaps or other derivative or convertible instruments, hedging contracts or other derivative securities or similar contracts or instruments in any way related to the Investor shall not be permitted to acquire, offer purchase or propose to acquire or agree to acquire, Beneficial Ownership sale of any Voting Securities to account for the dilutive effect Common Stock and/or price of any issuance of equity securities up to a maximum shares of the 4,329 Common Stock, provided that, from and after the one-year anniversary of the Initial Closing Date, each of the Magnetar Investors and the White Hat Investor, respectively, shall be entitled to enter into any such transactions so long as the aggregate number of shares of Common Stock authorized for issuance under (or the Company’s 2013 Equity Incentive Plan value thereof based on the last reported trading price of the Common Stock on the immediately preceding trading day) subject to all such transactions engaged in by the Magnetar Investors or the White Hat Investor, respectively, on any given trading day does not exceed more than 45% of the sum of the number of Conversion Shares (or the value thereof based on the last reported trading price of the Common Stock on the immediately preceding trading day) then owned by the Magnetar Investors and their Permitted Transferees or the White Hat Investor and its Permitted Transferees, as applicable, plus the number of Conversion Shares (or the value thereof based on the last reported trading price of the Common Stock on the immediately preceding trading day) underlying the shares of Series A Preferred Stock then owned by the Magnetar Investors and their Permitted Transferees or the White Hat Investor and its Permitted Transferees, as applicable, on as-converted basis (without giving effect to any limitation on conversion set forth in Section 10(h) of the Certificate of Designations), plus the number of any shares of Common Stock owned by the Magnetar Investors or the White Hat Investor, as applicable, as of the date hereof, in the aggregate; and provided further that, in the event of any breach by the Investors of this Section 4.5(b), the rights of the Investors under Section 9(a) and Section 9(b) of the Certificate of Designations shall immediately terminate;
(i) make or in any way encourage or participate in any “solicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act), to vote, or knowingly seek to advise, encourage or influence any Person with respect to voting of, any voting securities of the Company or any securities convertible or exchangeable into or exercisable for any such voting securities, (ii) enter into request, call or agreeseek to call (or, for the avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), other than of or by the holders of the Series A Preferred Stock voting as a separate class for the purpose of voting or consenting to the matters on which the holders of Series A Preferred Stock have the right to vote or consent to under Section 9 of the Certificate of Designations, (iii) initiate or be the proponent of any stockholder proposal for action by the Company’s stockholders, (iv) except as contemplated by this Agreement and the Certificate of Designations, seek, alone or in concert with others, representation on the Board of Directors or the removal of any director from the Board of Directors (including through any “withhold” or similar campaign), or (v) become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company; provided that subject to the terms of the Voting Agreements, nothing in this paragraph (b) shall restrict the voting by proxy in the ordinary course of business;
(d) make any public announcement with respect to, or offer, seek, propose or seek indicate an interest in (in each case with or without conditions), either alone or in concert with others, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities of the Company or any Subsidiary of the Company, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether publicly written or otherwiseoral) to enter intowith any other Person regarding any of the foregoing (it being understood that the foregoing shall not restrict a Person from tendering shares, receiving payment for shares or otherwise be involved participating in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” such transaction on the same basis as defined in Section 13(d) other stockholders of the Exchange ActCompany);
(e) except as contemplated by this Agreement and the Certificate of Designations, merger otherwise act, alone or other in concert with others, to seek to control or influence, in any manner, the management, Board of Directors or business combination relating to all or part of the Company or any of its subsidiaries Subsidiaries, including (i) changing the Board of Directors or any acquisition transaction for all or part management of the assets Company, including any plans or proposals to declassify the Board of Directors or to change the number or term of directors or to fill any vacancies on the Board of Directors, (ii) any material change in the capitalization, capital allocation policy or dividend policy of the Company, or (iii) seeking to have the Company waive or make amendments or modifications to the Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any Person;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would require the Company to make a public announcement regarding any of the foregoing;
(h) enter into any agreements, arrangements or understandings with any third party (including security holders of the Company) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party in connection with any of the foregoing (it being understood that each Investor and its Affiliates, or the Investors collectively, shall not be considered a “group” for purposes of this clause (g)); or
(i) except as contemplated by this Agreement and the Certificate of Designations, request the Company or any of its subsidiaries Representatives, directly or indirectly, to amend or waive any provision of their respective businessesthis Section 4.5; provided that this clause shall not prohibit the making of a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.5, 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; provided, however, that negotiated private sales subject to the terms of shares of Common Stock to a single purchaser or a “group” will be permitted if Section 4.3 and the purchasing party agrees Voting Agreements, nothing in writing to be bound by the provisions of this Section 5.1;
4.5 will (iiii) other than a “solicitation” prevent the Investors’ designee serving on the board of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders directors of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring from taking any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing while acting in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her such designee’s capacity as a director of the Company in accordance with his or to actions taken by the Investors her fiduciary duties as a director or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on limit the decision by the Board ability to vote or a duly constituted committee transfer shares of the Board (a) Common Stock, privately make and submit to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of any proposal that is intended to be made and submitted on a plan of liquidation non-publicly disclosed or dissolution; or
announced basis (v) on the occurrence of and would not reasonably be expected to require public disclosure by any material breach Person), participate in rights offerings made by the Company to all holders of Common Stock, receive any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors dividends or similar distributions with respect to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities securities of the Company, (v) or tender shares of Common Stock into any tender or exchange offer. Notwithstanding the withdrawal foregoing and excluding any purchase of all pending proposals referred debt or equity securities that may occur in Section 5.1(b)(ii) without a Change of Control having occurred and withoutconnection with the transactions contemplated by this Agreement, nothing herein shall prevent either Investor from purchasing, selling or the termination of, an agreement to effect a Change of Control, or the decision otherwise trading debt securities of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended Company if as a result of any other event specified such purchase, sale or trade such Investor beneficially owns 9.9% or less of the Company’s outstanding debt securities. This Section 4.5 shall supersede and replace Section 7 of the Confidentiality Agreements, dated September 3, 2021, between the Company and each respective Investor or its Affiliate in this its entirety, and such provisions of Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in 7 shall, upon execution of this Agreement, automatically terminate and be of no further force or effect.
Appears in 1 contract
Sources: Subscription Agreement (Comtech Telecommunications Corp /De/)
Standstill. (a) The Investors You hereby agree that that, from and after the Closing date of this Agreement and until the earliest of (i) such time as two years after the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) date on which discussions concerning the possibility of the outstanding Common StockPossible Transaction have terminated, (ii) the fourth date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar business combination, (4th) anniversary hereof each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of such agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following such Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity surviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that contemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities by Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the date on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which the parties enter into any definitive agreement contemplating a Change of the Company, without the prior written approval of the CompanyControl Event, neither the Investors you nor any of its Affiliates willyour Representatives will in any manner, directly or indirectly:
, (ia) acquireeffect, seek, offer or propose to acquire (whether publicly or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Companyotherwise), or (D) cause or participate in or in any way assist any other person to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; providedeffect, however, that the Investor shall not be permitted to acquireseek, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intoeffect or participate in, or otherwise be involved in or part of, (1) any acquisition transaction, including a proposed negotiated private sale of its shares beneficial ownership of Common Stock to a single purchaser any securities or a “group” as defined in Section 13(d) assets of the Exchange ActSeller (other than with respect to any acquisitions in the ordinary course for passive investment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or exchange offer, merger or other business combination relating to all involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or part of the Company or any of its subsidiaries or any acquisition other extraordinary transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election Seller; or (4) any - solicitation- of any director to “proxies- (as those terms are used in the Board;
(iv) call or seek to call a meeting proxy rules of the Common Stockholders Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, Seller; (b) form, join or in any way participate in a “group” group- (within the meaning of Section 13(d)(3) of as defined under the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securities;
(v) deposit any Securities securities of the Company into a voting trust unless such voting trust is bound by Seller or otherwise act, alone or in concert with others, to seek to control or influence the provisions management, Board of this Section 5.1, Directors or subject the Securities policies of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
Seller; (vic) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring take any action or otherwise act which would reasonably be expected to contest require the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply Seller to the Investor Nominated Director(s) solely in his or her capacity as make a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of public announcement regarding any of the following events, immediately be suspended until the expiration types of the time period matters set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue above; or (d) enter into any discussions or negotiations or make diligence materials available, arrangements with any third party with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change any of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant foregoing. Notwithstanding anything to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under contrary in this Agreement, which breach has not been remedied within thirty following the period described in the foregoing sentence, nothing in this Agreement (30including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) shall, directly or indirectly, prevent or otherwise limit you or your Representatives from taking any withdrawal or lapsing of any such tender or exchange offer actions referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent clauses (50%a)-(d) of this section 7 or related thereto, and in each case without notice to or consultation with the outstanding Voting Securities Seller. The Seller also agrees during such period not to publicly request you (or your Representatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and warrants that, as of the Companydate of this Agreement, (v) neither you nor any of your affiliates owns, of record or beneficially, any voting securities of the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and withoutSeller, or the termination of, an agreement to effect a Change of Control, any securities convertible into or the decision exercisable for any voting securities of the Board or a duly constituted committee Seller (other than such ownership by your affiliates of the Board up to reject all an aggregate of 1% of such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iiisecurities), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
; (ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Standby Purchase Agreement (Trade Street Residential, Inc.)
Standstill. (a) The Investors hereby agree that from During the Closing until the earliest of (i) such time as the Investors Cooperation Period, Azurite will not, and will cause its controlling and controlled Affiliates and its and their Affiliates no longer respective Representatives acting on its behalf (collectively own at least four and nine-tenths percent (4.9%with Azurite, the “Restricted Persons”) of the outstanding Common Stockto not, (ii) the fourth (4th) anniversary hereof directly or (iii) a Change of Control of the Companyindirectly, without the prior written approval consent, invitation, or authorization of or by the CompanyCompany or the Board, neither the Investors nor any of its Affiliates willin each case, directly or indirectlyin writing:
(i) offer to acquire, offer or propose agree to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any acquire rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire (except by way of stock dividends or agree other distributions or offerings made available to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares holders of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into Shares generally on a pro rata basis), directly or agreeindirectly, whether by purchase, tender or exchange offer, propose or seek (whether publicly or otherwise) to enter intothrough the acquisition of control of another person, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, any voting securities of the Company (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, or other beneficial ownership interest in excess of 19.9% of the then-outstanding Common Shares (the “Ownership Threshold”), provided that if Azurite commences a tender offer for Common Shares, at a price equal to or higher than the 10-Day VWAP immediately before the commencement date, which if consummated, would result in Azurite holding no more than the Ownership Threshold, the Company shall not make any public announcement, whether by filing a Schedule 14D-9 (or any amendment thereto) or otherwise, recommending that the Company’s stockholders reject such tender offer, subject to the fiduciary duties of the Company’s directors under the OGCL;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s shareholders (or the setting of a record date therefor), (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate 4 or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board or (D) conduct a referendum of shareholders of the Company;
(iii) make a request for any shareholder list or other books and records of the Company or any of its subsidiaries;
(iv) make any public proposal, public announcement or public request with respect to, (A) any change in the number, terms or identity of directors of the Company or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement, (B) any change in the business, capitalization, capital allocation policy or dividend policy of the Company or sale, spinoff, splitoff or other similar separation of one or more business units, (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 Organizational Documents, (E) causing the Common Shares to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing the Common Shares to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(v) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act (as defined below)) of proxies with respect to the election or removal of 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 promulgated under the Exchange Act) in any such solicitation of proxies;
(vi) 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 or sale, spinoff, splitoff or other similar separation of one or more business units, 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 rules and regulations thereunderCompany 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);
(vii) 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 Azurite with respect to Voting Securities now or hereafter owned by them;
(vviii) deposit any Securities of the Company enter into a voting trust unless such voting trust is bound by the provisions of this Section 5.1trust, arrangement or agreement with respect to any Voting Securities, or subject the any Voting Securities of the Company to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement (B) solely with Affiliates of Azurite or arrangement (C) granting proxies in solicitations approved by the Board;
(ix) 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 the voting any security (other than any index fund, exchange traded fund, benchmark fund or broad basket of such Securitiessecurities) that includes, relates to, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions derives any significant part of this Section 5.1;
(vi) seek representation on the Board or its value from a change decline in the composition of the Board market price or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence value of any of the following events, immediately be suspended until the expiration securities of the time period set forth below Company and would, in this Section 5.1(b)the aggregate or individually, but only so result in Azurite ceasing to have a “net long as position” in the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 Company equivalent to its percentage beneficial ownership of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more voting power of the then issued and outstanding shares of Voting Securities Common Shares of the Company;
(x) 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 Shares held by a Restricted Person to any Third Party;
(xi) 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;
(xii) 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
(xiii) make any request or submit any proposal to amend or waive the terms of this Agreement (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; provided, that the restrictions in this Section 2(c) shall terminate automatically upon the earliest of the following: (i) the delivery of notice by Azurite at any time after the one year anniversary date of this Agreement, that the New Directors have resigned from the Board and all of their other respective positions with the Company and that Azurite is terminating the Cooperation Period (a “Cooperation Period Termination”), (ii) on any material breach of Sections 1(a), (b), (c), (d) (other than the decision third sentence of clause (d)) or (i) of this Agreement by the Company (including, without limitation, a failure to appoint the New Directors to the Board and, with respect to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to the Audit Committee, in accordance with Section 1) upon ten (10) business days’ written notice by Azurite to the Company if such breach has not been cured within such notice period, provided that Azurite is not in material breach of this Agreement at the time such notice is given or a duly constituted committee prior to the end of the Board notice period; (aiii) the Company’s entry into (x) a definitive written agreement with respect to solicit one or more proposals for a transaction any Extraordinary Transaction that, if consummated, would result in a Change the acquisition by any person or group of Control more than 50% of the Voting Securities or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company or (by) to pursue discussions one or negotiations or make diligence materials available, with respect to an unsolicited proposal more definitive written agreements providing for a transaction thator series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 19.9% of the Common Shares (including on an as-converted basis) outstanding immediately prior to such issuance(s) 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 or upon exercise or conversion of currently outstanding options or convertible securities of the Company shall not be counted toward this clause (y)); (iv) the commencement of any tender or exchange offer (by any person or group other than Azurite 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 Change of Control;
Schedule 14D-9 (iiior amendment thereto) on the decision by the Board to that does not recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any shareholders reject such tender or exchange offer referred (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 Section 5.1(b)(i2(c)) in which such Person does not acquire more than fifty percent (50%) will prohibit or restrict any of the outstanding Voting Securities of Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the CompanyCompany or a Third Party, (vB) making (after consultation with the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except Company to the extent then suspended legally permitted and practicable) 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 other event specified 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) investing 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 regarding any matter, or privately requesting a waiver of any provision of this Section 5.1(b)) shall again be applicable for so Agreement, as long as and only such private communications or requests would not reasonably be expected to require public disclosure of such communications or requests by the extent provided in this AgreementCompany or any of the Restricted Persons.
Appears in 1 contract
Standstill. (a) The Investors hereby Investor Parties agree that from the Closing until the earliest later of (i) such time as 90 days after the Investors first day on which no Investor Designee serves on the Board and their Affiliates the Investor has no longer collectively own at least four rights (or has irrevocably waived its right) under Section 5.10 (except for Section 5.10(f)) and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control expiration of the CompanyLock-Up Period (the “Standstill Expiration Date”), without the prior written approval of the CompanyBoard, neither the Investors nor any of its Affiliates willInvestor Parties will not, directly or indirectly, and will cause their Affiliates not to:
(ia) acquire, offer or propose seek to acquire, agree to acquire or agree make a proposal to acquire, Beneficial Ownership by purchase or otherwise, any equity securities or direct or indirect rights to acquire any equity securities of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, any securities convertible into or (D) exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership price of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under (solely to the Company’s 2013 Equity Incentive Plan as extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the aggregate, greater than 15% of the date hereof;
then outstanding Common Stock (ii) enter into which calculation shall, for the avoidance of doubt, include the notional or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale other number of its shares of Common Stock specified in the documentation for any Contract to a single purchaser or a “group” as defined in Section 13(d) which any of the Exchange ActInvestor Parties are party which is designed to produce economic benefits and risks to any of the Investor Parties that correspond substantially to the ownership by the Investor Parties of shares of Common Stock, merger except in the case of any such Contract which is settled only in cash));
(b) make or other business combination in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to all the election or part 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 subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makeSubsidiaries, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries stockholders or initiate any stockholder proposal for action by the Common Stockholders Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director from the Board;
(c) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities of the Company or any Subsidiary of the Company, formor any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, join 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, to seek to control or influence, in any manner, the management, board of directors or policies of the Company or any of its Subsidiaries;
(e) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would 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 agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including forming, joining or in any way participate participating in a “group” (within the meaning of as defined in Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securitiesthird party in connection with any of the foregoing;
(vi) deposit any Securities of request the Company into 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 voting trust unless such voting trust is bound by confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.15.07, or subject the Securities of which the Company to may accept or reject in its sole discretion, so long as any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;request is made in a manner that does not require public disclosure thereof by any Person; or
(vij) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.15.07 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 5.07; provided, however, that nothing in clauses this Section 5.07 will (ii1) limit the Investor Parties’ ability to vote, Transfer or Hedge (subject to Section 5.08), convert shares of Series B Preferred Stock into Common Stock (iiisubject to Section 6 of the Series B Certificate of Designations), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, privately make and submit to the Company and/or the Board any proposal that is intended by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (iv) and would not reasonably be expect to require public disclosure by any Person), participate in rights offerings made by the Company to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Company held by the Investor Parties, tender shares of Common Stock or Series B Preferred Stock into any tender or exchange offer (vi) subject to Section 5.08), effect an adjustment to the Conversion Rate pursuant to the Series B Certificate of Designations or otherwise exercise rights under its Common Stock or Series B Preferred Stock that are not the subject of this Section 5.1(a5.07, (2) shall apply to limit the ability of the Investor Nominated Director(s) solely Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision member of the Board or a duly constituted committee of (3) apply to or otherwise restrict the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementWella Sale.
Appears in 1 contract
Sources: Investment Agreement (Coty Inc.)
Standstill. (a) The Investors Each Purchaser hereby agree agrees that from the Closing until the earliest of date that is three (i3) years following the Closing (the “Standstill Period”), such time as the Investors Purchaser shall not, and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of shall cause its Affiliates willnot to, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting except for Equity Securities acquired (A) as a result of the exercise Company received (1) by way of any rights stock splits, stock dividends, reclassifications, recapitalizations or obligations set forth other distributions by the Company in respect of the Standby Purchase Agreement Shares (or this Agreementthe Common Stock issuable on conversion of the Shares), (B2) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transactionthe conversion of the Shares, (C3) pursuant to Section 5.5, or (4) upon the exercise or conversion of any convertible or exercisable Equity Securities of the Company received pursuant to the foregoing subclauses (1), (2) or (3), (x) acquire (directly from or indirectly, by purchase or otherwise) any Equity Securities of the Company or (y) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire (directly or indirectly, by purchase or otherwise) Equity Securities of the Company, in each case, if such acquisition (together with any other Equity Securities of the Company previously acquired) would result in such Purchaser and its Affiliates Beneficially Owning (on a fully diluted basis) an amount of Common Stock equal to or greater than fifteen percent (D15%) to maintain their aggregate percentage interest in of the Company’s issued and outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into except indirectly as a result of ownership of Equity Securities of the Company acquired hereunder at the Closing or agreethereafter in accordance with Section 5.4(a)(i), offer(x) acquire (directly or indirectly, propose or seek (whether publicly by purchase or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale Equity Securities of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part any Subsidiary of the Company or (y) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire (directly or indirectly, by purchase or otherwise) Equity Securities of any of its subsidiaries or any acquisition transaction for all or part Subsidiary of the assets Company, in each case if such acquisition (together with any other Equity Securities of any Subsidiary of the Company previously acquired) would result in such Purchaser and its Affiliates Beneficially Owning (on a fully diluted basis) an amount of any such Subsidiary’s common stock equal to or greater than (A) fifteen percent (15%) of, or (B) with respect to Spectrum or Old Mutual, any of of, its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1issued and outstanding common stock;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate inparticipate, directly or indirectly, in any such “solicitation” of “proxies” to votevote (as such terms are used in the rules of the SEC), or seek to advise or influence any person Person (other than (x) such Purchaser or entity its Affiliates, (y) in accordance with and consistent with the recommendation of the Board or (z) with respect to the Fortress Representatives that are directors) with respect to the voting election of any director to the BoardVoting Stock;
(iv) call authorize or seek to call a meeting commence any tender offer or exchange offer for shares of Voting Stock (for the Common Stockholders avoidance of the Company doubt, tendering into any tender offer or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, exchange offer not otherwise violating this clause this Section 5.4(a)(iv) will not violate this Section 5.4(a)(iv));
(v) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the Exchange Act and Act, for the rules and regulations thereunder) with respect to purpose of voting, acquiring, holding, or disposing of any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1Stock;
(vi) seek representation on submit to the Board a written proposal for or a change in offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the composition Company or any Subsidiary thereof or any of the Board securities or number of directors elected by the holders of Common Stock assets, or a change in the number of make any public announcement with respect to such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andproposal or offer;
(vii) bring request the Company or any action of its Affiliates, directly or otherwise act indirectly, to contest the validity amend or waive any provision of this Section 5.15.4; providedor
(viii) enter into any arrangements with any third party concerning any of the foregoing.
(b) If, at any time prior to the termination of the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Company Change in Control Event, (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Company Change in Control Event and the Board has not recommended that nothing the stockholders of the Company reject such offer within the time period contemplated by Rule 14e 3 under the Exchange Act, or (iii) the Company files or consents to the filing against the Company of a petition for relief or reorganization or arrangement or any other petition in bankruptcy, insolvency, reorganization or other similar Law, makes an assignment for the benefit of creditors or consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to the Company or with respect to any substantial part or its property, then, in each case, for so long as such condition continues to apply, the limitation on the actions described in clauses (ii), (iii), (iv) or ), (v), (vi), (vii) and (viii) of Section 5.4(a) (and any related acquisition of Beneficial Ownership by such Purchaser and/or their Affiliates) shall not be applicable to such Purchaser.
(c) Anything in this Section 5.1(a) shall apply 5.4 to the Investor Nominated Director(scontrary notwithstanding, this Section 5.4 shall not be construed to prohibit or restrict (i) solely any actions taken by any designee, nominee or appointee (including the Fortress Representatives) on the Board, in their capacities as a member of the Board and in compliance with and subject to his or her capacity fiduciary duties as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision member of the Board or a duly constituted committee of the Board to reject all such proposals, (wii) the abandonment by Purchaser from making non-public suggestions, recommendations and proposals regarding the future management of, or business plans of, the Company to the Company’s management or its Board after the occurrence of a Specified Breach Event or a duly constituted committee Director Addition Event (each as defined in the Certificate of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iiiDesignation), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv)each case that would not require any Person to publicly disclose such suggestions, recommendations or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementproposals.
Appears in 1 contract
Sources: Securities Purchase Agreement (Harbinger Group Inc.)
Standstill. (a) The Investors hereby agree that from Until the Closing until the earliest later of (ix) such time as the Investors three (3) year anniversary of the Closing, and their Affiliates (y) the date on which the Majority Approved Holders are no longer collectively own at least four and nine-tenths percent entitled to designate any director for nomination pursuant to Section 1.1 (4.9%) of the outstanding Common Stockor have irrevocably waived their right), (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companyeach Stockholder agrees that, without the prior written approval of the CompanyBoard, neither the Investors nor such Stockholder will not (in its own capacity or with or through any of its Affiliates willother Person), directly or indirectly:
(i) acquire, offer or propose to acquire acquire, solicit an offer to sell or agree to acquire, Beneficial Ownership directly or indirectly, alone or in concert with others, by purchase or otherwise, any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any Voting Securities, other than Voting Securities acquired (A) as a result securities of the exercise Company or its Subsidiaries, including shares of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer any securities convertible or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 exchangeable into shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter or direct or indirect rights, warrants or options to acquire, or securities convertible into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part ofexchangeable for, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part voting securities of the Company or any of its subsidiaries or Subsidiaries, excluding any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock or other securities acquired (A) pursuant to a single purchaser conversion or a “group” will be permitted if the purchasing party agrees in writing to be bound redemption of any shares of Series A Preferred Stock, bonus issue, dividend or distribution by the provisions of this Section 5.1Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), or (B) by a Person from the Company in connection with such Person’s service as a director or Board observer;
(iiiii) other than a “solicitation” of a “proxy” (except as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Boardexpressly provided in this Agreement, make, or in any way knowingly encourage or participate in, directly or indirectly, alone or in concert with others, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to vote (as such terms are used in the voting election of any director to the Board;
(iv) call or seek to call a meeting proxy rules of the Common Stockholders SEC promulgated pursuant to Section 14 of the Exchange Act), any securities of the Company or any of its Subsidiaries (whether or not any such vote relates to the Company’s subsidiaries election or initiate removal of directors) whether subject to or exempt from the federal proxy rules, seek to advise or influence in any stockholder proposal manner whatsoever any Person with respect to the voting of any securities of the Company or any of its Subsidiaries or seek to propose to influence, advise, change or control the management, board of directors (or similar governing body), policies, affairs or strategy of the Company or any of its Subsidiaries by way of any public communication or other communications to their respective equityholders intended for action such purpose;
(iii) except as otherwise expressly provided in this Agreement or as required in connection with the consummation of the transactions contemplated by the Common Stockholders of the CompanyInvestment Agreement, form, join or in any way participate or act in a “group” (within the meaning of as such term is used in Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securitiesvoting securities of the Company or any of its Subsidiaries;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (A) any of the assets (tangible or intangible) of the Company or any of its Subsidiaries, or (B) any direct or indirect right, warrant or option to acquire any asset of the Company or any of its Subsidiaries, except in the event any such asset as is then being offered for sale by the Company or any of its Subsidiaries;
(v) deposit arrange, or in any Securities way participate, directly or indirectly, in any financing for the purchase of any securities or assets of the Company or any of its Subsidiaries or any securities convertible into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities exchangeable or exercisable for any securities or assets of the Company to or any agreement of its Subsidiaries, except for such securities or arrangement with respect to assets as are then being offered for sale by the voting Company or any of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1its Subsidiaries;
(vi) act, alone or in concert with others, to make any public announcement or seek representation on the Board to propose (in each case, with or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(viiwithout any condition) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely Company, any of its Subsidiaries or any of their respective equityholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other similar transaction to or with the Company or any such Subsidiary (or in his or her capacity as a director respect of any securities of the Company or any of its Subsidiaries) or otherwise seek, alone or in concert with others, to actions taken control, change or influence the management, board of directors or policies of the Company or any such Subsidiary or nominate any Person as a director who is not nominated by the Investors then-incumbent Board, or propose any of their Affiliates matter to prepare be voted upon by the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities stockholders of the Company;
(iivii) on make any request or proposal to amend, waive or terminate any provision of this Section 2.2(a); provided that this clause shall not prohibit a Stockholder from making a confidential request or proposal to the decision by the Board Chief Executive Officer or a duly constituted committee Chair of the Board (a) to solicit one seeking any amendment or more proposals for a transaction thatwaiver of any provision of this Section 2.2, if consummatedwhich the Company may accept or reject in its sole discretion, would result so long as any such request is made in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend manner that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutiondoes not require public disclosure thereof; or
(vviii) on the occurrence of take any material breach by action that might result in the Company of having to make a public announcement regarding any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer matters referred to in Section 5.1(b)(iclauses (i) in which such Person does not acquire more than fifty percent - (50%vii) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in this Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv2.2(a), or announce any intention to do, or enter into any arrangement, understanding or discussion with any one or more other Persons to do, any of the actions restricted or prohibited under clauses (zi)—(vii) the remedy of any breach described this Section 2.2(a).
(b) Nothing in Section 5.1(b)(v2.2(a) will limit the Stockholders’ ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.3 below), convert (subject to Section (C) of Article VII of the limitations provided in Section 5.1(aSeries A Certificate) (except or otherwise exercise the rights of its shares of Common Stock or shares of Series A Preferred Stock or the ability of the Stockholders’ director designee elected to the extent then suspended Board pursuant to Section 1.1 to vote or otherwise exercise its legal duties or otherwise act in its capacity as a result member of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementBoard.
Appears in 1 contract
Sources: Equity Commitment and Investment Agreement (Catalent, Inc.)
Standstill. During the period (asuch period, the “Standstill Term”) The Investors hereby agree that from commencing as of the Closing Date and continuing until the earliest later of (iA) the date that concludes any 90 day continuous period during which no Investor Designee serves on the Board, provided that, notwithstanding the foregoing, if the Investor subsequently designates a new Investor Designee that serves on the Board following such time 90-day period, the Standstill Term shall be reinstated commencing as of such date that such new Investor Designee serves on the Investors Board, and their (B) the date on which the Investor and its Affiliates no longer collectively beneficially own at least four and nine-tenths less than five percent (4.95.0%) of the outstanding shares of Common StockStock then issued and outstanding, neither the Investor nor any Investor Affiliate Assignee Parent shall do any of the following, either directly or indirectly by causing, requesting or directing its Affiliates to do any of the following, except as expressly approved or invited in writing by the Company:
(a) other than Permitted Purchases and purchases of Additional Subscription Shares, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”), except, nothing in this Section 3.1(a) shall prevent or prohibit the Investor or any of its Affiliates from (i) investing in a fund with respect to which the Investor or any of its Affiliates does not have or share decision-making authority over investment or divestment decisions; or (ii) in the fourth case of an Affiliate that is a private equity fund or a credit fund, investing through a portfolio company of such fund;
(4thb) anniversary hereof make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (iiiii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, such offer or propose proposal is referred to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stockan “Acquisition Proposal”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized actions otherwise prohibited by this Section 3.1(d) for issuance under so long as the Company’s 2013 Equity Incentive Plan as of the date hereofBoard maintains and does not withdraw such recommendation;
(iie) enter into directly or agreeindirectly, offer, solicit proxies or consents or propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved become a participant in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or entity subject any securities of the Company to any arrangement or agreement with respect to the voting election of such securities, including the granting of any director to the Boardproxy;
(ivg) call propose (i) any merger, consolidation, business combination, tender or seek to call a meeting exchange offer, purchase of the Common Stockholders Company’s assets or businesses, purchase of any securities of the Company or any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent of the Company’s subsidiaries Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or initiate any stockholder proposal for action by the Common Stockholders of the Companyindirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (within as such terms are used in the meaning of Section 13(d)(3) rules of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement SEC with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities securities of the Company;
(iii) on the decision by request or propose to the Board or the Company (or any of its officers, directors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of this Section 3.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a duly constituted committee public announcement regarding, a potential Business Combination or any of the Board matters set forth in clauses (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or through (bi) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutionabove; or
(vk) on enter into discussions, negotiations, arrangements or agreements with any Person relating to the occurrence foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 3.1 shall prohibit the Investor or any of any material breach its Affiliates from making confidential, nonpublic proposals to the Board for a transaction involving a Business Combination following the public announcement by the Company of any of its material obligations under this Agreement, which breach after the Closing Date that it has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach entered into a definitive agreement with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and withoutThird Party for a transaction involving a Business Combination, or the termination of, an agreement to effect Investor Designee from performing its duties as a Change of Control, or the decision member of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementBoard.
Appears in 1 contract
Standstill. During the 30-month period after the date of this Agreement (such period, the “Restricted Term”), neither the Investor nor any of its Affiliates (collectively, the “Standstill Parties”) shall (and the Investor shall cause its Affiliates not to), except as expressly approved or invited in writing by the Company:
(a) The Investors hereby agree directly or indirectly, acquire beneficial ownership of Then Outstanding Ordinary Shares and/or Ordinary Shares Equivalents (or any instrument that from gives the Closing until Investor or any of its Affiliates the earliest economic equivalent of ownership of an amount of Ordinary Shares or Ordinary Shares Equivalents), or make a tender, exchange or other offer to acquire Then Outstanding Ordinary Shares and/or Ordinary Shares Equivalents;
(ib) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) directly or indirectly, seek to have called any meeting of the outstanding Common Stockshareholders of the Company, propose or nominate for election to the Company’s Board of Directors any person whose nomination has not been approved by a majority of the Company’s Board of Directors or cause to be voted in favor of such person for election to the Company’s Board of Directors any Then Outstanding Ordinary Shares; 16
(iic) directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person (an “Offeror”) the fourth (4th) anniversary hereof or (iii) consummation of which would result in a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
Company (i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stockan “Acquisition Proposal”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that shareholders accept any such offer, Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized actions with respect to such offer otherwise prohibited by this Section 3.1(c) for issuance under so long as the Company’s 2013 Equity Incentive Plan as of the date hereofCompany maintains and does not withdraw such recommendation;
(iid) enter into directly or agreeindirectly, offer, propose solicit proxies or seek (whether publicly consents or otherwise) to enter into, or otherwise be involved become a participant in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) in opposition to the recommendation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval a majority of the election to the Company’s Board solely of Directors with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to votematter, or seek to advise or influence any person Person, with respect to voting of any Then Outstanding Ordinary Shares;
(e) deposit any Then Outstanding Ordinary Shares in a voting trust or entity subject any Then Outstanding Ordinary Shares to any arrangement or agreement with respect to the voting election of any director to the Boardsuch Then Outstanding Ordinary Shares;
(ivf) call propose (i) any merger, consolidation, business combination, tender or seek to call a meeting of the Common Stockholders of the Company or any exchange offer, purchase of the Company’s subsidiaries assets or initiate businesses, or similar transaction involving the Company or (ii) any stockholder proposal for action by recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Common Stockholders Company (each of the Companyforegoing actions referred to in clause (ii), an “Extraordinary Matter”);
(g) act in concert with any Third Party to take any action in clauses (a) through (e) above, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting SecuritiesAct;
(vh) deposit enter into discussions, negotiations, arrangements or agreements with any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect Person relating to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms foregoing actions referred to the provisions of this Section 5.1;
in (via) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreementthrough (f) above; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:or
(i) on request or propose to the commencement (as defined in Rule 14d-2 Company’s Board of Directors, any member(s) thereof or any officer of the Exchange Act) by Company that the Company amend, waive, or consider the amendment or waiver of, any Person of a tender provisions set forth in this Section 3.1 (including this clause (i)); provided, however, that the Investor may make such requests or exchange offer seeking proposals privately to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on ’s directors, officers or advisors if the decision Company executes, or publicly announces its intention to execute, a collaboration and licensing agreement, strategic alliance or similar transaction with a third party so long as, in each case, such requests or proposals are not intended to, and would not reasonably be expected to, require any public disclosure by the Company or the Investor of such requests or proposals, as applicable; Notwithstanding anything to the contrary in this Section 3.1, the Investor may at any time communicate privately with the Company’s directors, officers or advisors or submit to the Company’s Board or a duly constituted committee of the Board (a) to solicit Directors one or more confidential proposals or offers for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for including a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve ), so long as, in each case, such communications and submissions are not intended to, and would not reasonably be expected to, require any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach public disclosure by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination ofInvestor of such communications or submissions, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementapplicable.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing Stockholder agrees that, until the earliest termination of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companythis Agreement pursuant to Section 3, without the prior invitation or written approval consent of the CompanyBoard acting by a majority vote of disinterested directors that (i) are unaffiliated with the Stockholder, neither and (ii) were not nominated by the Investors nor any Stockholder ((i) and (ii), the “Unaffiliated Directors”)), the Stockholder shall not, and shall cause each of its Affiliates willhis affiliates and associates and his and their respective Representatives acting on his or their behalf (collectively with the Stockholder, the “Restricted Persons”) not to, directly or indirectly:
(i) acquireindirectly effect or seek, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intoeffect, announce any intention to effect, cause, or otherwise be involved in participate in:
(i) any voluntary acquisition of (A) any securities (or part ofbeneficial ownership thereof), or rights or options to acquire any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser securities (or a “group” as defined in Section 13(dbeneficial ownership thereof) of the Exchange ActCompany (other than any voluntary acquisition by one Restricted Person of any securities from another Restricted Person) in each case, merger if such acquisition would result in the Stockholder acquiring beneficial ownership of more than an additional 4,000,000 shares of Company’s common stock outstanding at such time, or other business combination relating to all (B) any assets, indebtedness or part of businesses of, the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businessesCompany; provided, howeverthat the foregoing shall not restrict (x) the acquisition of securities received as compensation for service on the Board or any committee thereof, that negotiated private sales or (y) transfers of shares of Common Stock to a single purchaser or a “group” will be permitted if securities among the purchasing party agrees in writing to be bound by Stockholder and the provisions of this Section 5.1Stockholder’s affiliated persons which does not change the Stockholder’s beneficial ownership;
(ii) any Extraordinary Transaction;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makediscussions or arrangements with, or in any way participate inaction to advise, assist, facilitate or encourage any such “solicitation” of “proxies” to votethird party, or seek any action to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) , in each case, with respect to any Voting Securities;of the foregoing —for the avoidance of doubt, this shall not restrict the Stockholder from discussions with existing or prospective investors in the Company about other topics related to the Company; or
(viv) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, action which would or subject the Securities of would reasonably be expected to force any Restricted Person or the Company to make a public announcement regarding any agreement or arrangement with respect to of the voting types of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change matters set forth in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityforegoing.
(b) The limitations provided in Section 5.1(a) shall, Stockholder agrees that any proposal delivered upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors invitation or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee written consent of the Board (ain accordance with Section 1(a) may be required to solicit one include any conditions that the Board considers necessary or more proposals for appropriate and shall be expressly conditioned, at a transaction thatminimum, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision fully informed, uncoerced affirmative vote of a majority of shares held by the Board to recommend that disinterested stockholders approve any action proposed by a Person (pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%144(b)(2) of the outstanding Voting Securities Delaware General Corporation Law), voting as a separate class (the “Disinterested Stockholder Requirement”). In assessing the Disinterested Stockholder Requirement, the Company shall exclude the votes of shares that, to the knowledge of the Company, are beneficially owned by any Associated Stockholder.
(vc) Notwithstanding anything in this Agreement to the withdrawal contrary, the foregoing provisions of all pending proposals referred in this Section 5.1(b)(ii1 shall not be deemed to restrict the Stockholder from: (i) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of communicating privately with the Board or a duly constituted committee the Company’s Chief Executive Officer, Chief Financial Officer, or Chief Legal Officer (and any other individual authorized by any of the Board to reject all such proposalsforegoing) regarding any matter, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as such communications are not intended to, and only would not reasonably be expected to, require any public disclosure by the Company, the Stockholder, or any person; (ii) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Agreement; or (iii) making any public disclosure necessary to comply with any law or legal process, or in order to comply with the extent provided rules of any securities exchange or market, so long as such requirement did not result from any violation of this Agreement or other voluntary action by the Stockholder. Nothing in this AgreementAgreement shall be deemed to restrict in any way G. ▇▇▇▇▇▇▇ ▇▇▇▇, III in the exercise of his fiduciary duties under applicable law as a director of the Company.
Appears in 1 contract
Sources: Cooperation Agreement (Grindr Inc.)
Standstill. (a) The Investors hereby agree that Except as otherwise provided in this Agreement, from the Closing date hereof until the earliest earlier of (x) the fifth anniversary of the date of the Purchase Agreement and (y) the date the Total Ownership Amount is less than the Release Share Total (the "Standstill Period"), without the prior approval of a majority of the Non-Investor Directors, no Investor-Related Party shall, directly or indirectly, (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) acquire voting securities of the Company that would result in the Investor Group Beneficially Owning, in the aggregate, a percentage of the Outstanding Shares in excess of the sum of (A) the Closing Ownership Percentage plus (B) 1% (excluding any changes to ownership resulting solely as a result of a reduction in the number of shares of Common Stock outstanding due to the repurchase of shares of Common StockStock by the Company), (ii) the fourth (4th) anniversary hereof make, solicit, initiate, encourage or (iii) participate in any offer or proposal that would reasonably be expected to result in a Change of Control or, if made by a Person other than an Investor-Related Party or a group of which an Investor-Related Party is a member, to constitute a Third Party Bid, (iii) engage in any "solicitation" of "proxies" (as such terms are used in the Company, without proxy rules promulgated by the prior written approval of SEC under the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting SecuritiesExchange Act), other than Voting Securities acquired (A) as a result for the benefit of the exercise Investor Directors, if and to the extent the Investor Group is entitled to designate any Investor Directors hereunder, or the other Director nominees of any rights or obligations set forth in the Standby Purchase Agreement or this AgreementBoard, (Biv) pursuant become part of a "group" (other than a group that includes only members of the Investor Group) that would be required to file a stock split, stock dividend, recapitalization, reclassification Schedule 13D with the SEC disclosing an intention to change or similar transaction, (C) directly from influence the control of the Company, or (Dv) grant any proxies, transfer shares to maintain their aggregate percentage interest in any voting trust or enter into any voting agreement (other than (x) among the Company’s outstanding Common Stock; provided, however, that members of the Investor shall not be permitted Group, (y) pursuant to acquirethis Agreement or (z) in respect of proxies voting in favor of a slate of Directors nominated by the Board). Notwithstanding the foregoing, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum member of the 4,329 shares Investor Group may propose, or engage in discussions with the Board regarding, (I) a possible Change of Common Stock authorized for issuance under Control transaction involving the Company’s 2013 Equity Incentive Plan as Investor Group or (II) a possible acquisition involving members of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) Investor Group of the Exchange Act, merger securities or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or its subsidiaries, provided that such discussions are not, and shall not be, publicly disclosed by any member of its subsidiaries the Investor Group or any other Investor-Related Party or any of their respective businesses; providedrespresentatives and would not in the written opinion of counsel to the Company reasonably satisfactory to the Investor Group (it being agreed and acknowledged that ▇▇▇▇▇, however▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will LLP is satisfactory counsel) be permitted if the purchasing party agrees in writing required by applicable law to be bound by the provisions of publicly disclosed.
(b) Nothing in this Section 5.1;
3.01 shall (iiii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including prohibit or restrict any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any member of the Investor Nominated Directors permitted by the terms hereof Group from responding to serve on such Board, make, or in any way participate in, inquiries from any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect as to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement Person's intention with respect to the voting of any Common Stock Beneficially Owned by such SecuritiesPerson, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to (ii) restrict the provisions right of this Section 5.1;
(vi) seek representation each Investor Director on the Board or a change any committee thereof to vote on any matter as such individual believes appropriate or the manner in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the which an Investor Nominated Director(s) solely Director may participate in his or her capacity as a director in deliberations or discussions at meetings of the Board or as a member of any committee thereof, (iii) prohibit any member of the Investor Group from acquiring securities of the Company issued by way of conversion, dividend, stock split or to actions taken by the Investors other distribution or any exchange, recapitalization or reclassification or similar transaction in respect of their Affiliates to prepare securities which such member of the Investor Nominated Directors Group is permitted to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations Beneficially Own under this Agreement, which breach has not been remedied within thirty or (30iv) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to except as provided in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) 2.04, restrict the ability of the outstanding Voting Securities members of the CompanyInvestor Group from voting for or against or abstaining from any vote in connection with any Change in Control transaction or Third Party Bid, (v) prevent the withdrawal members of all pending proposals referred the Investor Group from selling their Acquisition Shares or (vi) prohibit any member of the Investor Group from complying with applicable law.
(c) Each member of the Investor Group shall be fully released from the provisions of this Section 3.01 in Section 5.1(b)(iithe event that (i) without a Change of Control having occurred and without, or the termination of, an agreement Board fails to effect a Change of Control, or the decision appoint Mr. LD as Chairman of the Board or a duly constituted committee of at any time that Mr. LD has the Board to reject all such proposalsright to, (w) the abandonment and has exercised his right to, be so appointed by the Board in accordance with Section 2.07 and such appointment is not prohibited by the applicable listing or a duly constituted committee corporate governance standards of the NYSE or any applicable law, rule or regulation, (ii) at any time during the two-year period after the date hereof, an Investor Director then serving on the Board of a process dies, resigns (other than as required by Section 2.03) or is removed or disqualified and the Board fails to solicit a proposal appoint to the Board any Investor Director designated by the Investor Group to be so appointed by the Board in accordance with Section 2.01(c)(ii) as successor to such Investor Director and such appointment is not prohibited by the applicable listing or corporate governance standards of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of ControlNYSE or any applicable law, (x) the withdrawal rule or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv)regulation, or (ziii) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except Board fails to appoint Mr. LD to the extent then suspended Board as an Investor Director in accordance with Section 2.01(b) and maintain Mr. LD on the Board as an Investor Director in accordance with the applicable provisions of Sections 2.01 and 2.03 at any time during the three-year period after the date hereof (other than as a result of Mr. LD's death or resignation or the prohibition, by the applicable listing or corporate governance standards of the NYSE or any other event specified in this Section 5.1(bapplicable law, rule or regulation, of Mr. LD's appointment to or continuation of service on the Board as an Investor Director)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Ionics Inc)
Standstill. (a) The Investors hereby agree that from From and after the Closing and until the earliest of (i) such time as the Investors date on which Parent, Member and their Affiliates Affiliates, in the aggregate, no longer collectively own at least four and nine-tenths percent (4.9%) are the Beneficial Owners of more than 1% of the outstanding Common StockVoting Securities, (ii) unless an exemption or waiver is otherwise approved by the fourth (4th) anniversary hereof or (iii) a Change Board of Control Directors, each of the CompanyParent and Member shall not, without the prior written approval of the Company, neither the Investors nor any of its and shall cause their Affiliates willnot to, directly or indirectly:
(ia) acquirenominate, offer give notice of an intent to nominate, or propose recommend for nomination a person for election to acquire or agree the Board of Directors at any meeting of Acquiror’s stockholders at which directors are to acquire, Beneficial Ownership be elected;
(b) solicit proxies in respect of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant election contest with respect to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofdirectors;
(iic) enter into initiate, encourage or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved participate in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxyproxies” (as such terms are defined under Regulation 14A under Exchange Act) or consents relating to the election of directors with respect to Acquiror, become a “participant” (as such term is defined in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including in any otherwise exempt solicitation pursuant seeking to Rule 14a-2(b)) seeking approval of the election to elect directors not nominated by the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makeDirectors, or in publicly announce an intention to vote with any way participate in, any such Person undertaking a “solicitation” of “proxies” to vote”, or seek to advise or influence any person Person or entity 13D Group with respect to the voting of any Voting Securities in favor of election of any director to directors not nominated by the BoardBoard of Directors;
(ivd) call deposit any Voting Securities in any voting trust or seek similar arrangement that would prevent or materially interfere with Parent or Member’s right or ability to call satisfy its obligations under this Agreement;
(e) submit any matter to (or propose any matter for submission to) a vote of stockholders of Acquiror (pursuant to Rule 14a-8 under the Exchange Act or otherwise) or bring any other business before a meeting of the Common Stockholders stockholders of the Company Acquiror;
(f) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or bring any other business before, any meeting of the Company’s subsidiaries stockholders; grant any proxies with respect to Voting Securities to any Person (other than to (i) an officer or initiate other representative of Member or Parent, or (ii) a designated representative of Acquiror pursuant to a proxy statement of Acquiror);
(g) initiate, encourage or participate in any stockholder proposal for action by the Common Stockholders “withhold” or similar campaign with respect to any meeting of the Companystockholders of Acquiror or any solicitation of written consents of the stockholders of Acquiror;
(h) request, or initiate, encourage or participate in, any request to call a special meeting of the stockholders of Acquiror;
(i) seek, alone or in concert with others, to amend any provision of Acquiror’s certificate of incorporation or bylaws;
(j) form, join join, encourage the formation of or engage in any way discussions relating to the formation of, or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) 13D Group with respect to any Voting Securities;
(vk) deposit take any action, alone or in concert with others, or make any public statement not approved by the Board of Directors, in each case, seeking to control or influence the management or policies of Acquiror or any of its Subsidiaries (other than consultations with, notifications to, or other communications with, the management of Acquiror in the ordinary course of business regarding business relationships between Parent or its Affiliates and Acquiror and its Affiliates) and not relating to the ownership or control of Acquiror;
(l) offer or propose to acquire or agree to acquire (or request permission to do so), whether by joining or participating in a 13D Group or otherwise, Beneficial Ownership of Voting Securities in excess of the Company Cap;
(m) enter into a voting trust unless such voting trust is bound discussions, negotiations, arrangements or understandings advise, assist or encourage any Person with respect to any of the actions prohibited by Section 3.1 or this Section 3.2;
(n) enter into any transaction the provisions effect of which would be to “short” any securities of Acquiror;
(o) publicly seek or publicly request permission to do any of the foregoing, publicly request to amend or waive any provision of this Section 5.13.2 (including this clause (n)), or subject the Securities of the Company to publicly make any agreement or arrangement public announcement with respect to any of the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1foregoing;
(vip) seek representation on the Board advise, assist or a change in the composition encourage any third party to do any of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andforegoing;
(viiq) bring enter into any action agreement, arrangement or otherwise act understanding with respect to any of the foregoing; or
(r) contest the validity or enforceability of the agreements contained in Section 3.1 or this Section 5.1; 3.2. provided, that nothing in clauses (ii)however, (iii), (iv) or (vi) of this Section 5.1(a3.2 shall not prevent (i) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors Member, Parent or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence from voting as stockholders of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only Acquiror so long as the Investors there is no breach of this Section 3.2, (ii) Parent or Member from taking any other actions expressly permitted by this Agreement, (iii) Member, Parent or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate from selling Acquiror Common Stock in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of connection with a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more for at least 50.1% of the outstanding shares Acquiror Common Stock commenced by a third party (and not involving any breach by Parent or Member of Voting Securities of the Company;
(iiSection 3.2) on the decision by the Board which tender or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction thatexchange offer, if consummated, would result in constitute a Change change of Control control of Acquiror or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on Parent, through a senior executive officer, from confidentially communicating to a senior executive officer of Acquiror a non-public proposal regarding the adoption purchase of additional securities of Acquiror in such a manner as would not reasonably be expected to require public disclosure (including by requiring a filing with the Board Securities Exchange Commission, Department of Directors Justice or Federal Trade Commission) by either party. Member and Parent hereby confirm that there are no arrangements or understandings to which it is a party concerning stock of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this AgreementAcquiror, except agreements to which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board Acquiror or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or subsidiary is a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementparty.
Appears in 1 contract
Sources: Stockholders Agreement (Sunnova Energy International Inc.)
Standstill. Except pursuant to the terms of this Agreement, the Co-Sale Agreement and the Right of First Refusal Agreement, or upon conversion of the Series D Preferred Stock into Common Stock, BI agrees that until December 31, 2000, BI will not, and will exercise its best efforts to not allow any of its affiliates or associates (as such terms are used in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), these terms to have such meaning throughout this Section), from and after the date that such person becomes an affiliate or associate unless in any such case specifically invited to do so by the Board of Directors of Transcend, to:
(a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted announce an intention to acquire, offer or propose to acquire acquire, solicit an offer to sell or agree to acquireacquire by purchase, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to by gift, by joining a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan partnership, limited partnership, syndicate or other "group" (as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined such term is used in Section 13(d13(d)(3) of the Exchange Act, merger such terms to have such meaning throughout this Section) or otherwise, any (i) material assets, businesses or properties of Transcend other than in the ordinary course of business combination relating or pursuant to all or part the express terms of the Company Development Agreement, or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of (ii) additional shares of Common Stock, Series D Preferred Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions any other securities of this Section 5.1Transcend convertible into, exchangeable for or exercisable for Common Stock (all such securities, collectively, "VOTING SECURITIES");
(iiib) other than participate in the formation or encourage the formation of any "person" (as such term is used in Section 13(d)(3) of the Exchange Act, such term to have such meaning throughout this Section) which owns or seeks to acquire beneficial ownership of any Voting Securities, or join or in any way participate with any such person in such action;
(c) solicit, or participate in any "solicitation" of "proxies" or become a “solicitation” of a “proxy” "participant" in any "election contest" (as such terms are defined under or used in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant these terms to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on have such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderthroughout this Section) with respect to any Voting SecuritiesTranscend;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Transcend Therapeutics Inc)
Standstill. Except as otherwise expressly provided in this Agreement (including this Section 3.1 and Section 3.2 hereto), none of the Shareholder or any of its Affiliates shall, directly or indirectly, acting alone, in a Group (other than a Group consisting solely of the Shareholder, JFLEI and their Affiliates) or in concert with others:
(a) The Investors hereby by purchase or otherwise, Beneficially Own, acquire, agree that from the Closing until the earliest of or offer to acquire any Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities, including any voting trust certificates representing such securities (in each case, other than (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common StockShares, (ii) rights, options or warrants distributed on a pro rata basis to all holders of the fourth (4th) anniversary hereof class or classes of securities of the Company pursuant to distribution that has been approved by at least a majority of the Independent Directors constituting the entire Independent Committee, (iii) securities acquired from the Company pursuant to a Change rights offer, exchange offer or similar transaction made by the Company which has been approved by at least a majority of Control the Independent Directors constituting the entire Independent Committee; (iv) grants of restricted Voting Securities or options to purchase Voting Securities (and the exercise thereof) to an executive officer of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee; and (v) grants of restricted CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 31 of 39 Voting Securities or options to purchase Voting Securities (and the exercise thereof) to a nonemployee director of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement pursuant to an equity compensation plan generally available to all nonemployee directors of the Company, without the prior written approval which grants have been approved by at least a majority of the Company, neither Independent Directors constituting the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofentire Independent Committee);
(iib) enter into or agree, offerenter, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in solicit any merger or part ofbusiness combination, tender offer, exchange offer or similar transaction involving the Company, or purchase, acquire, propose to purchase or acquire or solicit the purchase or acquisition of any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) portion of the Exchange Act, merger business or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any if, in each case, (i) in such transaction, all holders of its subsidiaries or any Voting Securities of their respective businesses; providedthe Company are not treated equally in terms of the dollar value at closing of the consideration, howeverif any, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound received by such holders or (ii) such transaction is entered into with Affiliates, members of a Group that includes the provisions of this Section 5.1Shareholder, JFLEI or their Affiliates or other Persons that are acting in concert with the Shareholder, JFLEI or their Affiliates to circumvent the foregoing provisions;
(iiic) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any "solicitation" of "proxies" or become a "participant" in any "election contest" (as such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to terms are used in the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action proxy rules promulgated by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of Commission under the Exchange Act) by for the removal of any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more member of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutionIndependent Committee; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Oao Technology Solutions Inc)
Standstill. Between the Execution Date and the fourth anniversary of the Execution Date, except as expressly authorized by Section 1 above during the Interim Period, each member of the Sweet 13D Group (including McKinley solely in his individual capacity but excluding the obligat▇▇▇▇ ▇▇ subsection (a)(ii) and (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companybelow), agrees that it and its respective Affiliates shall not, without the prior written approval consent of the CompanyBoard, neither the Investors nor any of which consent may be withheld in its Affiliates willsole and absolute discretion, directly or indirectly, alone or in concert with any other Person:
(i) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, Beneficial Ownership of any Voting Spectranetics Securities (or any direct or indirect rights, options or warrants for any Spectranetics Securities, except as may be employed through hedging or similar risk management strategies), other than Voting the Spectranetics Securities acquired (A) that such Person Beneficially Owns as a result of the exercise date hereof as referenced in Section 12(c) of any rights or obligations set forth in the Standby Purchase Agreement or this Settlement Agreement, provided, however, that McKinley may acquire additional common stock on the open market to t▇▇ ▇▇▇▇▇t that his total Beneficial Ownership does not exceed 300,000 shares of Common Stock; (Bii) pursuant encourage any Person to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Companyacquire, or (Diii) advise any Person with respect to maintain their aggregate percentage interest in the Company’s outstanding Common Stockacquisition or proposed acquisition of, Spectranetics Securities other than attempts to dispose of such aforementioned Spectranetics Securities that such Person Beneficially Owns as of the date hereof; provided, however, that the Investor this Section (a) shall not be permitted apply to acquireacquisitions resulting from (x) the exercise of the vested options held by Largey, offer Samek or propose Sweet; or (y) stock splits, reverse stock splits or ▇▇▇▇▇ r▇▇▇▇▇sifications affecting all outstanding Spectranetics Securities (or any class(es) thereof) or stock dividends or other pro rata distributions by Spectranetics or its direct or indirect subsidiaries to acquire all holders of Spectranetics Securities (or agree to acquire, Beneficial Ownership any class(es) thereof) or from exercise of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofrights so distributed;
(iib) enter into or agreesolicit, offerencourage any other Person to solicit, propose or seek (whether publicly or otherwise) advise any Person with respect to enter intothe Solicitation of, or otherwise be involved in any other way participate in, endorse or part facilitate any Solicitation of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser Proxies or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely consents with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makeSpectranetics Securities, or become a Participant, or otherwise engage in any way participate in, any such “solicitation” Solicitation of “proxies” to vote, Proxies or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
consents (iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderA) with respect to any Voting matter submitted or to be submitted to the vote of the holders of any Spectranetics Securities at any annual or special meeting or by written consent, including, without limitation, with respect to the election of Directors of Spectranetics in opposition to the nominees recommended by the Board or otherwise for the purpose of influencing or acquiring control of the management of Spectranetics, or (B) for the purpose of calling a special meeting of Spectranetics' stockholders or the holders of any Spectranetics Securities;
(vc) deposit advise or seek to advise any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement Person with respect to the voting of any Spectranetics Securities;
d) submit, encourage any other Person to submit, advise or assist any Person with respect to the submission of, or otherwise participate in, or endorse, or facilitate any nominations or proposals to Spectranetics or to the holders of Spectranetics Securities for consideration by the holders of any Spectranetics Securities at any annual or special meeting of such holders or in any action to be taken by written consent pursuant to Spectranetics' charter or bylaws, Rule 14a-3 under the Exchange Act, the provisions of any document governing the terms of any such Spectranetics Securities or governing the rights of the holders thereof, or otherwise;
e) otherwise take any action to request a special meeting of the holders of any Spectranetics Securities;
f) request, or take any action to obtain or retain, any list of holders of Common Stock;
g) deposit any Spectranetics Securities in a voting trust or subject them to a voting agreement or other agreement or arrangement having of similar effect unless such agreement or arrangement conforms otherwise join or form a partnership, limited partnership, limited liability company, syndicate or other Group (except insofar as a Group consisting solely of the members of the Sweet 13D Group shall be deemed to exist at the Execution Date) for the purpose of acquiring, holding, voting or disposing of any Spectranetics Securities, or for the purpose of circumventing or avoiding any of the provisions of this Section 5.1Settlement Agreement, encourage, advise or assist any Person to do any of the foregoing;
h) engage in, or offer, agree or propose to engage in, any acquisition of the Company or substantially all of its assets (viother than to participate therein as a stockholder on terms generally available to all of Spectranetics' stockholders); or arrange, or in any way participate, directly or indirectly, in any financing for any such transaction or for the purchase by any person of any Spectranetics Securities or any assets of Spectranetics;
i) otherwise act (x) to seek representation on the Board Board, (y) to seek the removal of any members of, or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination size of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv)Board, or (z) to acquire control of Spectranetics or any of its securities or assets, provided, however, that this subsection (z) shall not apply to acquisitions resulting from (i) the remedy exercise of the vested options held by Largey, Samek or Ms. Sweet; or (ii) stock splits, reverse stock spli▇▇ ▇▇ ot▇▇▇ reclassifications affecting all outstanding Spectranetics Securities (or any class(es) thereof) or stock dividends or other pro rata distributions by Spectranetics or its direct or indirect subsidiaries to all holders of Spectranetics Securities (or any class(es) thereof) or from exercise of any breach described in Section 5.1(b)(v)rights so distributed;
j) publicly disclose any intent, the limitations provided in Section 5.1(a) (except purpose, plan or proposal with respect to the extent then suspended as a result Company, its Board, management, policies, or affairs or any of its securities or assets, or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan or proposal; or
k) assist, advise, encourage, facilitate or enter into any agreement or arrangement to assist or advise, any other event specified Person in this Section 5.1(b)taking any action referenced in any of Sections 9(a) shall again be applicable for so long as and only to the extent provided in this Agreementthrough (j) above.
Appears in 1 contract
Standstill. During the Standstill Period, the Investor, or any of its Affiliates, shall not directly or indirectly, except as expressly invited in writing by the Company:
i. subject to Section 5.16, without the express consent of the Company, acquire any additional equity securities (aincluding Ordinary Shares, American Depositary Shares and Ordinary Share Equivalents) The Investors hereby agree of the Company or any instrument that from gives the Closing until Investor or any of its Affiliates the earliest economic equivalent of ownership of an amount of securities of the Company (ia “Derivative”) if, after such time as acquisition, the Investors and their Affiliates no longer collectively Investor would beneficially own at least four and nine-tenths more than twenty one percent (4.921.0%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; share capital;
ii. knowingly encourage or support a tender, exchange or other offer or proposal by a Third Party, provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares actions otherwise prohibited by this clause (ii) for so long as the Company maintains and does not withdraw such recommendation;
iii. propose (x) any merger, consolidation, business combination, tender or exchange offer, purchase of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as assets or businesses, or similar transaction involving the Company or (y) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
iv. seek to have called any meeting of the date hereof;
(ii) enter into or agree, offershareholders of the Company, propose or seek (whether publicly or otherwise) nominate for election to enter into, or otherwise be involved in or part of, the Company’s board of directors any acquisition transaction, including person whose nomination has not been approved by a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) majority of the Exchange ActCompany’s board of directors (excluding the Designated Director, merger if any) or other business combination relating cause to all be voted in favor of such person for election to the Company’s board of directors any Ordinary Shares or part American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents (including any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iiiDerivatives) other than as contemplated by Section 5.3 hereof;
v. solicit proxies or consents or become a “solicitation” of participant in a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) in opposition to the recommendation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval a majority of the election to the Board solely Company’s board of directors with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to votematter, or seek to advise or influence any person Third Party, with respect to voting of any Ordinary Shares or entity American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents (including any Derivatives);
vi. deposit any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents in a voting trust or subject any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents to any arrangement or agreement with respect to the voting election of any director to the Board;
(iv) call such Ordinary Shares or seek to call a meeting American Depositary Shares of the Common Stockholders then outstanding share capital of the Company or Ordinary Share Equivalents other than as contemplated by Section 5.3 hereof; or
vii. act in concert with any of the Company’s subsidiaries Third Party to take any action in clauses (i) through (vi) above, or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, form or join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (with any Third Party within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to the equity securities (including any Voting Securities;
Derivatives) of the Company. Notwithstanding the foregoing, (vA) deposit the mere voting in accordance with Section 5.3 hereof of any Securities voting securities of the Company into held by the Investor or its Affiliates shall not constitute a voting trust unless violation of any of clauses (i) through (vii) above, (B) nothing in this Agreement shall prohibit the Investor or any of its Affiliates from submitting to the board of directors of the Company or to management of the Company a confidential proposal for a transaction involving a Change of Control or other proposed action, provided that neither the Company nor the Investor or any of its Affiliates is required to publicly disclose the fact that such voting trust is bound by proposal or request to consider such a proposal was made, (C) if any executive officer or director of the Investor serves as a member of the Company’s board of directors, any action he or she takes in the performance of his or her duties as a member of the Company’s board of directors shall not be deemed to violate this Section 5.1, and (D) the provisions of this Section 5.1, 5.1 shall terminate and be of no further force or subject the Securities of effect if (i) the Company to any publicly announces the entry into a definitive agreement or arrangement with respect to for the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director acquisition of the Company or to actions taken more than fifty percent (50%) of its consolidated assets by the Investors a third party, or (ii) any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of person commences a tender or exchange offer seeking with respect to acquire Beneficial Ownership of the securities representing fifty percent (50%) or more of the outstanding shares of Voting Securities voting power of the Company;
(ii) on , unless the decision by the Board or Company files a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy recommendation statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 under Rule 14d-9 of the Exchange Act to elect (or remove any directors such successor provision) with the SEC within 10 business days following commencement of such offer advising the Company;
’s stockholders to reject such offer (iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of provided that if any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer transaction referred to in the foregoing clauses (i) and (ii) is terminated or abandoned, then the provisions of this Section 5.1(b)(i) 5.1 shall again become effective). In the event that the Company engages in which such Person does not acquire more than fifty percent (50%) discussions or negotiations involving a possible Change of the outstanding Voting Securities Control of the Company, (v) the withdrawal of all pending proposals referred Investor will be given notice thereof and the right to participate in Section 5.1(b)(ii) without a Change of Control having occurred and without, or any process on substantially the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended same terms as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementparticipants.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time So long as the Investors Company has not breached this Agreement, each member of the Investor Group and their Affiliates no longer collectively own at least four severally, and nine-tenths percent (4.9%) of not jointly, agrees that during the outstanding Common Stock, (ii) period commencing on the fourth (4th) anniversary date hereof or (iii) a Change of Control of and ending on the CompanyTermination Date, without the prior written approval consent of the CompanyBoard specifically expressed in a written resolution adopted by a majority vote of the entire Board, neither he, she or it will not, and will cause each of his, her or its officers, agents and other Persons acting on his, her or its behalf not to, and will use commercially reasonable efforts to cause his, her or its respective Associates (as defined in Section 11 hereof) including but not limited to those Associates identified in the Investors nor any of its Affiliates will, directly or indirectlySchedule 13D not to:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Companyengage, or in any way participate, directly or indirectly, in any “solicitation” (Das such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) of proxies or consents (whether or not relating to maintain their aggregate percentage interest the election or removal of directors), advise, encourage or influence any Person (as defined in Section 11 hereof) with respect to the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership voting of any Voting Securities with respect to account the 2006 Annual Meeting or the 2007 Annual Meeting in a manner that is inconsistent with the terms of this Agreement; or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company for the dilutive effect approval of any issuance of equity securities up stockholder proposals whether made pursuant to a maximum of the 4,329 shares of Common Stock authorized for issuance Rule 14a-8 or Rule 14a-4 or exempt solicitations pursuant to Rule 14a-2(b)(1) Rule 14a-2(b)(2) under the Company’s 2013 Equity Incentive Plan as of the date hereofExchange Act or otherwise induce or encourage any other Person to initiate any such stockholder proposal;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(viii) other than as previously disclosed in the Schedule 13D, deposit any Voting Securities of the Company into a in any voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the any Voting Securities of the Company to any arrangement or agreement or arrangement with respect to the voting of such any Voting Securities, except as expressly set forth in this Agreement;
(iv) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other agreement Person in connection with any of the foregoing, or make any investment in or enter into any arrangement having similar effect unless such agreement with, any other Person that engages, or arrangement conforms offers or proposes to engage, in any of the foregoing;
(v) request the Company or its advisers, directly or indirectly, to amend or waive any of the provisions of this Section 5.1Agreement, except for amendments or waivers not of a material nature;
(vi) seek representation on take any initiative with respect to the Board Company or any of its subsidiaries which involves making a change in public announcement or that could require the composition Company or any of its subsidiaries to make a public announcement regarding such initiative or any of the Board or number activities referred to in any of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreementthese subparagraphs (i) through (vi); andor
(vii) bring take or cause or induce others to take any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director inconsistent with any of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityforegoing.
(b) The limitations provided in Section 5.1(a) shall, upon It is understood and agreed that the occurrence of foregoing shall not be deemed to prohibit any of the following events, immediately be suspended until the expiration members of the time period set forth below Investor Group who are directors of the Company from engaging in this Section 5.1(b), but only so long as any lawful acts in the Investors or any exercise of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (fiduciary duties as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time Except as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companyotherwise provided in this Agreement, without the prior written approval consent of the CompanyBoard, neither the Investors nor any of its Affiliates willStockholders shall not, and shall instruct their Affiliates, not to, directly or indirectly:indirectly (in each case, except as permitted by this Agreement):
(a) (i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any Voting Securitiesvoting securities of the Company or any voting rights decoupled from the underlying voting securities which would result in the ownership or control of, or other beneficial ownership interest in, more than 17.5% of the then-outstanding shares of the Common Stock in the aggregate; or (ii) other than Voting Securities acquired (A) in open market sale transactions where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, knowingly sell, offer or agree to sell, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by the Stockholders to any Third Party that has, or would have as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar such transaction, a beneficial ownership interest of 5.0% or more of the then-outstanding shares of Common Stock;
(Cb) directly from the Company, (i) nominate or (D) to maintain their aggregate percentage interest in publicly recommend for nomination a person for election at any Stockholder Meeting at which the Company’s outstanding Common Stockdirectors are to be elected; provided(ii) initiate, howeverencourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) form, join or in any way participate in any group or agreement of any kind with respect to any voting securities of the Company in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with the Stockholders or one or more of their Affiliates that agree to be bound by the Investor shall not be permitted terms and conditions of this Agreement);
(d) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to acquireany arrangement or agreement with respect to the voting thereof (other than any such voting trust, arrangement or agreement solely among the Stockholders and their Affiliates and otherwise in accordance with this Agreement);
(e) seek publicly, alone or in concert with others, to amend any provision of the Company’s articles of incorporation or bylaws;
(f) demand an inspection of the Company’s books and records;
(g) effect or seek to effect, offer or propose to acquire effect, cause or agree participate in, or in any way assist or facilitate any other person to acquireeffect or seek, Beneficial Ownership offer or propose to effect or participate in, any (i) material acquisition of any Voting Securities to account for the dilutive effect of securities, or any issuance of equity securities up to a maximum material assets or businesses, of the 4,329 shares Company or any of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
its subsidiaries; (ii) enter into tender offer or agree, exchange offer, propose or seek (whether publicly or otherwise) to enter intomerger, or otherwise be involved in or part ofacquisition, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger share exchange or other business combination relating involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any material portion of its subsidiaries or any of their respective businesses; providedbusinesses (each, however, that negotiated private sales of shares of Common Stock to a single purchaser or a an “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1Extraordinary Transaction”);
(iiih) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Actenter into any discussions, disregarding clause (iv) of Rule 14a-1(1)(2) and including negotiations, agreements or understandings with any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election Third Party with respect to the Board solely foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the Investor Nominated Directors permitted by foregoing, or otherwise take or cause any action inconsistent with any of the terms hereof to serve on such Board, make, foregoing;
(i) publicly make or in any way participate in, advance publicly any such “solicitation” of “proxies” to vote, request or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of proposal that the Company or the Board amend, modify or waive any provision of this Agreement; or
(j) take any action challenging the validity or enforceability of this Section 3 or this Agreement. Nothing in Section 3 shall be deemed to (i) prohibit the Stockholders or their Affiliates from communicating privately with the Company’s subsidiaries or initiate directors, officers, and Representatives so long as such private communications would not be reasonably determined to trigger public disclosure obligations for any stockholder proposal for action party; (ii) limit the exercise in good faith by the Common Stockholders Designee of the Company, form, join her or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) his fiduciary duties solely in her or his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control ; or (biii) prevent the Stockholders from making any private statement to pursue discussions or negotiations or make diligence materials available, the Company with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend Extraordinary Transaction that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach is publicly announced by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this AgreementThird Party.
Appears in 1 contract
Sources: Board Representation and Standstill Agreement (Stratus Properties Inc)
Standstill. Unless earlier terminated pursuant to Section 6.2, during the Standstill Term, except as otherwise provided in this Section 3 or unless expressly approved or invited in writing by the Board of Directors, neither the Investor nor any of its controlled Affiliates or any Third Party that acquires, by way of merger, acquisition, consolidation, share purchase, asset purchase, recapitalization, restructuring or similar transactions, all or substantially all of the assets of the Investor or beneficial ownership of a majority of the voting securities of the Investor (or any surviving or resulting entity thereof) (such Third Parties, “Successor Affiliates” and, collectively with the Investor and its controlled Affiliates, the “Standstill Parties”) shall (and the Investor shall cause its controlled Affiliates not to):
(a) The Investors hereby agree that from directly or indirectly acquire beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, or make a tender, exchange or other offer to acquire Shares of Then Outstanding Common Stock or Common Stock Equivalents (other than, in each case, the Closing until the earliest of Purchased Shares);
(ib) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) directly or indirectly seek to have called any meeting of the outstanding stockholders of the Company or propose or nominate for election to the Board of Directors any person whose nomination has not been approved by a majority of the Board of Directors or fail to cause to be voted in accordance with the recommendation of the Board of Directors with respect to such person for election to the Board of Directors any Shares of Then Outstanding Common Stock;
(c) directly or indirectly, knowingly encourage or support a tender, exchange or other offer or proposal by any other Person or group (iian “Offeror”) the fourth (4th) anniversary hereof or (iii) consummation of which would result in a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stockan “Acquisition Proposal”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized actions otherwise prohibited by this Section 3.1(c) for issuance under so long as the Company’s 2013 Equity Incentive Plan as of the date hereofCompany maintains and does not withdraw such recommendation;
(iid) enter into directly or agree, offer, propose indirectly solicit proxies or seek (whether publicly consents or otherwise) to enter into, or otherwise be involved become a participant in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) in opposition to the recommendation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval a majority of the election to the Board solely of Directors with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to votematter, or seek to advise or influence any person Person, with respect to voting of any Shares of Then Outstanding Common Stock of the Company;
(e) deposit any Shares of Then Outstanding Common Stock in a voting trust or entity subject any Shares of Then Outstanding Common Stock to any arrangement or agreement with respect to the voting election of any director to the Boardsuch Shares of Then Outstanding Common Stock;
(ivf) call propose (i) any merger, consolidation, business combination, tender or seek to call a meeting exchange offer, purchase of all or substantially all of the Common Stockholders assets or businesses of the Company and its subsidiaries, considered collectively, or any the Company’s shares of capital stock that, together with the Shares of Then Outstanding Common Stock of the Company, would represent more than 50% of the Company’s subsidiaries outstanding shares of capital stock, or initiate any stockholder proposal for action by the Common Stockholders of similar transaction involving the Company, or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
(g) act in concert with any Third Party to take any action in clauses (a) through (f) above, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting SecuritiesAct;
(vh) deposit enter into negotiations, arrangements or agreements with any Securities Person relating to the foregoing actions referred to in (a) through (g) above; or
(i) request or propose to the Board of Directors, any member(s) thereof or any officer of the Company that the Company amend, waive, or consider the amendment or waiver of, any provisions set forth in this Section 3.1 (including this clause (i)); Notwithstanding the foregoing, nothing in this Agreement shall restrict the Investor’s executive officers or directors shall be restricted from purchasing or Disposing of shares of Common Stock for his or her personal account (other than through a tender or exchange offer), tendering his or her shares into a Third Party tender or exchange offer, voting his or her shares in any way he or she determines, or depositing his or her shares into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company subjecting them to any arrangement or agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityshares.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby parties agree that from the Closing until the earliest of if (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%Merger Agreement is terminated pursuant to Section 7.1(d) of the outstanding Common Stock, thereof or (ii) the fourth (4th) anniversary hereof or (iii) Merger does not occur as a Change of Control result of the Companyfailure of the condition set forth in Section 6.3(f) of the Merger Agreement, then for the period beginning on the date of this Agreement and ending on the third anniversary of the date of the termination of the Merger Agreement (the “Standstill Period”), except as otherwise provided in this Agreement:
(a) None of the Shareholders will, directly or indirectly, without the prior written approval consent of the CompanyBoard, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership propose, seek or offer to acquire any securities or assets of Wendy’s or any Voting Securitiesof its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, other than Voting Securities acquired (A) as a result of the exercise purchase by any Shareholder of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, such securities that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of were owned on the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, hereof by any acquisition transaction, including other person that was a proposed negotiated private sale member of its shares of Common Stock to a single purchaser or a “group” as defined in (within the meaning of Section 13(d13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with any Shareholder with respect to the Company on the date hereof, merger (ii) enter, agree to enter, propose, seek or offer to enter into any merger, share exchange, exchange offer, liquidation, dissolution, business combination, recapitalization, restructuring, or other business combination relating to all or part of the Company extraordinary transaction involving Wendy’s or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; providedsubsidiaries, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate or engage in, any such “solicitation” solicitation of “proxies” proxies or consents to vote, or seek to advise or influence any person or entity with respect to the voting election of, any voting securities of Wendy’s, other than any director voting rights pursuant to the Board;
Agreement, dated as of November 4, 2005 by and among S▇▇▇▇▇▇ Asset Management Corp and Trian Fund Management, L.P., and any amendments thereto, (iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securities;
(v) deposit any Securities voting securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the InvestorWendy’s, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity Shareholder’s participation in a group with a member that was a member of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement “group” (as defined in Rule 14d-2 Section 13(d)(3) of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, date hereof with such Shareholder with respect to an unsolicited Wendy’s, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Wendy’s, (vi) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Wendy’s, (vii) seek to make, or make, a stockholder proposal at any meeting of the stockholders of Wendy’s or make a request for a transaction thatlist of Wendy’s’ stockholders or otherwise acting alone, if consummatedor in concert with others, would result in a Change seek to control or influence the governance or policies of Control;
Wendy’s, (iiiviii) on the decision disclose any intention, plan or arrangement prohibited by the Board to recommend that stockholders approve foregoing, or (ix) advise, assist or encourage or enter into any action proposed by a Person pursuant to the filing of a preliminary proxy statement discussions, negotiations, agreements or arrangements with any other persons, other than officers, directors, partners, members, employees, advisors (including without limitation, financial and legal advisors and accountants) and representatives with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificityforegoing. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.Each Shareholder further agrees that during
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from Each Investor agrees that, for the Closing until period commencing on the date of this Agreement and ending on the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent thirtieth (4.9%30th) calendar day preceding the opening of the outstanding Common Stocknomination window for submission of director nominees at the Company’s 2021 Annual Meeting, (ii) a material breach by the fourth Company of its obligations under this Agreement which is not cured within five (4th5) anniversary hereof or business days after written notice from any Investor, (iii) an announcement by the Company of any type of transaction involving a Change change of Control control in the Company and (iv) the adoption by the Board of any amendment to any of the Company, without the prior written approval organizational documents of the CompanyCompany that would impair the ability of stockholders to submit director nominations in connection with stockholder meetings after the 2020 Annual Meeting (the “Standstill Period”), neither the Investors it nor any of its Affiliates will, and it will cause each of its Affiliates not to, directly or indirectly, in any manner other than pursuant to Section 6(c), acting alone or in concert with others:
(i) acquiresubmit any stockholder 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, offer or propose nominate any candidate for election to acquire or agree to acquire, Beneficial Ownership the Board (including by way of any Voting SecuritiesRule 14a-11 of Regulation 14A), other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or expressly permitted by this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into engage in, directly or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part ofindirectly, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “groupsolicitation” (as defined in Section 13(dRule 14a-1 of Regulation 14A) of the Exchange Act, merger proxies (or other business combination relating to all written consents) or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or otherwise become a “group” will be permitted if the purchasing party agrees participant in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are term is defined under in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant in opposition to Rule 14a-2(b)) seeking approval the recommendation or proposal of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in recommend or request or induce or attempt to induce any way participate in, other person to take any such “solicitation” of “proxies” to voteactions, or seek to advise advise, encourage or influence any other person or entity with respect to the voting election of the Common Stock (including any director withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iviii) call or seek to call, or to request the call of, a special meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries stockholders, or initiate any stockholder proposal make a request for action by the Common Stockholders a list of the Company, ’s stockholders or for any books and records of the Company;
(iv) 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 and the rules and regulations thereunder) with respect to the Common Stock or deposit any Voting Securitiesshares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) deposit vote for any Securities of nominee or nominees for election to the Company into a voting trust unless such voting trust is bound Board, other than those nominated or supported by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1Board;
(vi) except as specifically provided in Section 1 and Section 2 of this Agreement, seek representation to place a representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andBoard;
(vii) bring any action acquire or otherwise act agree, offer, seek or propose to contest the validity of this Section 5.1; providedacquire, that nothing in clauses or cause to be acquired, ownership (ii), (iii), (iv) or (viincluding beneficial ownership) of this Section 5.1(a) shall apply to any of the Investor Nominated Director(s) solely in his assets or her capacity as a director business of the Company or any rights or options to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in acquire any such events:
(i) on the commencement (as defined assets or business from any person, in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities each case other than securities of the Company;
(iiviii) on other than at the decision by direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or negotiate with or provide any information to any person with respect to, a duly constituted committee merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (ait being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to solicit one acquire, offer or more proposals for a transaction thatpropose to acquire, if consummatedor agree to acquire, would result directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any interests in a Change of Control the Company’s indebtedness or (bB) to pursue discussions an aggregate amount of more than 14.99% of the Company’s outstanding Common Stock (which shall not include Common Stock issued in connection with a stock split, stock dividend or negotiations or make diligence materials available, similar corporate action initiated by the Company with respect to an unsolicited proposal for any securities beneficially owned by any of the Investors or their Affiliates); provided, however, nothing herein shall prevent any Investor from confidentially seeking a transaction that, if consummated, would result in a Change of Controlwaiver from this provision;
(iiix) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any liens against the Company’s capital stock, except that an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(ivxi) on disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the adoption by foregoing;
(xii) take any action challenging the Board validity or enforceability of Directors any provisions of a plan of liquidation or dissolutionthis Section 3; or
(vxiii) on the occurrence of enter into any material breach by the Company of agreement, arrangement or understanding concerning any of its material obligations under the foregoing (other than this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors or encourage or solicit any person to the Company setting forth such alleged breach with specificity. Upon (u) undertake any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementforegoing activities.
Appears in 1 contract
Standstill. The Executive covenants and agrees that during the Term and thereafter through the second anniversary of his Date of Termination (a) The Investors hereby agree that from such period, the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company“Standstill Period”), without the prior written approval consent of the Company, neither the Investors nor Executive will not at any time, directly or indirectly, acquire, make any proposal or offer to acquire, or propose or facilitate the acquisition of, directly or indirectly, by purchase or otherwise, record or Beneficial Ownership of any equity securities of the Ashford-Related Entities, or securities of any of its Affiliates willthe Ashford-Related Entities that are convertible, exchangeable, redeemable or exercisable into such equity securities except those granted to him as contemplated by this Agreement. During the Standstill Period, without the prior written consent of the Company, the Executive covenants and agrees that he will not at any time, directly or indirectly:
(i) acquireenter into, offer or propose to acquire or agree to acquireenter into, Beneficial Ownership of commence or submit any Voting Securitiesmerger, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreementconsolidation, (B) pursuant to a stock splittender offer, stock dividendexchange offer, business combination, share exchange, recapitalization, reclassification restructuring or similar transaction, (C) directly from other extraordinary transaction involving any of the CompanyAshford-Related Entities, or (D) any subsidiary or division thereof, or any of their respective securities or assets or take any action that would reasonably be expected to maintain their aggregate percentage interest in require any of the Company’s outstanding Common Stock; provided, however, that Ashford-Related Entities to make a public announcement regarding the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership possibility of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofsuch transaction;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, tender any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) equity securities of the Exchange Act, merger Ashford-Related Entities into a tender or exchange offer commenced by a third party other business combination relating to all than a tender or part exchange offer that the Board of Directors of one of the Company Ashford-Related Entities has affirmatively publicly recommended to such Ashford-Related Entity’s stockholders that such stockholders tender into such offer and has not publicly withdrawn or any changed such recommendation (and in the case of its subsidiaries such a withdrawal or any acquisition transaction for all or part change of the assets recommendation, it shall not be a breach of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted this clause (ii) if the purchasing party agrees in writing tendered or exchanged securities are withdrawn prior to be bound by the provisions expiration of this Section 5.1such tender or exchange offer);
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (ivx) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission (the “SEC”) promulgated pursuant to voteSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) to vote any securities of any of the Ashford-Related Entities under any circumstances, or deposit any securities of any of the Ashford-Related Entities in a voting trust or subject them to a voting agreement, pooling agreement or other agreement of similar effect, (y) seek to advise or influence any person or entity with respect to the voting election of any director securities of any of the Ashford-Related Entities (other than to vote as recommended by Board of Directors of any of the Ashford-Related Entities), or (z) grant any proxy with respect to any equity interests of any of the Ashford-Related Entities (other than to the Boardapplicable Ashford-Related Entity or a person specified by such Ashford-Related Entity in a proxy card provided to stockholders of such Ashford-Related Entity);
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning as that term is used for purposes of Rule 13d-5 or Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securitiesequity securities of any of the Ashford-Related Entities;
(v) deposit form or publicly disclose any Securities intention, plan or arrangement to change any of the Company into a voting trust unless such voting trust is bound by members of the provisions Board of this Section 5.1Directors or executive officers of any of the Ashford-Related Entities, any of the executive officers of any Ashford-Related Entity, or subject the Securities any of the Company to governing documents of any agreement or arrangement with respect to of the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1Ashford-Related Entities;
(vi) call, request the calling of, or otherwise seek representation on or submit a written request for the Board calling of a special meeting of, or a change in initiate any stockholder proposal for the composition election of any director or any other action by, the stockholders of any of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andAshford-Related Entities;
(vii) bring any action make a public announcement in connection with seeking to influence or otherwise act to contest control the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director management of the Company Board of Directors, or to actions taken by the Investors policies, affairs or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence strategy of any of the following eventsAshford-Related Entities;
(viii) form or disclose any intention, immediately be suspended until plan or arrangement inconsistent with the expiration foregoing;
(ix) advise, assist or encourage, or enter into any arrangements with, any other persons in connection with any of the time period matters set forth below in this Section 5.1(b10(c), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(vx) on the occurrence of any material breach by publicly request the Company to amend or waive any provision of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b10(c)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Ashford Inc.)
Standstill. (a) The Investors hereby agree that from During the Closing until Standstill Period, the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common StockInvestor, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates willAffiliates, shall not directly or indirectly, except as expressly invited in writing by the Company:
(i) acquiresubject to Section 5.16, offer or propose to acquire or agree to acquire, Beneficial Ownership without the express consent of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, acquire any additional equity securities (including Ordinary Shares, American Depositary Shares and Ordinary Share Equivalents) of the Company or any instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of an amount of securities of the Company (Da “Derivative”) to maintain their aggregate percentage interest in if, after such acquisition, the Investor would beneficially own more than twenty one percent (21.0%) of the Company’s outstanding Common Stock; share capital;
(ii) knowingly encourage or support a tender, exchange or other offer or proposal by a Third Party, provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of prohibited from taking any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
actions otherwise prohibited by this clause (ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” for so long as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1maintains and does not withdraw such recommendation;
(iii) propose (x) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or similar transaction involving the Company or (y) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
(iv) seek to have called any meeting of the shareholders of the Company, propose or nominate for election to the Company’s board of directors any person whose nomination has not been approved by a majority of the Company’s board of directors (excluding the Designated Director, if any) or cause to be voted in favor of such person for election to the Company’s board of directors any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents (including any Derivatives) other than as contemplated by Section 5.3 hereof;
(v) solicit proxies or consents or become a “solicitation” of participant in a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv) in opposition to the recommendation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval a majority of the election to the Board solely Company’s board of directors with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to votematter, or seek to advise or influence any person Third Party, with respect to voting of any Ordinary Shares or entity American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents (including any Derivatives);
(vi) deposit any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents in a voting trust or subject any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents to any arrangement or agreement with respect to the voting election of any director to the Board;
(iv) call such Ordinary Shares or seek to call a meeting American Depositary Shares of the Common Stockholders then outstanding share capital of the Company or Ordinary Share Equivalents other than as contemplated by Section 5.3 hereof; or
(vii) act in concert with any of the Company’s subsidiaries Third Party to take any action in clauses (i) through (vi) above, or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, form or join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (with any Third Party within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to the equity securities (including any Voting Securities;
Derivatives) of the Company. Notwithstanding the foregoing, (vA) deposit the mere voting in accordance with Section 5.3 hereof of any Securities voting securities of the Company into held by the Investor or its Affiliates shall not constitute a voting trust unless violation of any of clauses (i) through (vii) above, (B) nothing in this Agreement shall prohibit the Investor or any of its Affiliates from submitting to the board of directors of the Company or to management of the Company a confidential proposal for a transaction involving a Change of Control or other proposed action, provided that neither the Company nor the Investor or any of its Affiliates is required to publicly disclose the fact that such voting trust is bound by proposal or request to consider such a proposal was made, (C) if any executive officer or director of the Investor serves as a member of the Company’s board of directors, any action he or she takes in the performance of his or her duties as a member of the Company’s board of directors shall not be deemed to violate this Section 5.1, and (D) the provisions of this Section 5.1, 5.1 shall terminate and be of no further force or subject the Securities of effect if (i) the Company to any publicly announces the entry into a definitive agreement or arrangement with respect to for the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director acquisition of the Company or to actions taken more than fifty percent (50%) of its consolidated assets by the Investors a third party, or (ii) any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of person commences a tender or exchange offer seeking with respect to acquire Beneficial Ownership of the securities representing fifty percent (50%) or more of the outstanding shares of Voting Securities voting power of the Company;
(ii) on , unless the decision by the Board or Company files a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy recommendation statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 under Rule 14d-9 of the Exchange Act to elect (or remove any directors such successor provision) with the SEC within 10 business days following commencement of such offer advising the Company;
’s stockholders to reject such offer (iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of provided that if any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer transaction referred to in the foregoing clauses (i) and (ii) is terminated or abandoned, then the provisions of this Section 5.1(b)(i) 5.1 shall again become effective). In the event that the Company engages in which such Person does not acquire more than fifty percent (50%) discussions or negotiations involving a possible Change of the outstanding Voting Securities Control of the Company, (v) the withdrawal of all pending proposals referred Investor will be given notice thereof and the right to participate in Section 5.1(b)(ii) without a Change of Control having occurred and without, or any process on substantially the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended same terms as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementparticipants.
Appears in 1 contract
Sources: Share Purchase Agreement (Amgen Inc)
Standstill. Each of the GGC Investor and the BSMH Investor agrees that, notwithstanding Section 4.6 hereof, until the later of (a) The Investors hereby agree the date that from is two (2) years following the Closing until and (b) the earliest of (i) such time as date that the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) GGC Investor loses its right to designate a director pursuant to Section 3.1(b), in the case of the outstanding Common StockGGC Investor, or the date that the BSMH Investor loses its right to designate a director pursuant to Section 3.1(c), in the case of BSMH Investor (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company“Standstill Period”), neither such Stockholder nor its Affiliates or Representatives (acting on its behalf or on behalf of such Stockholder or any of its Affiliates or at its direction or the Investors nor direction of such Stockholder or any of its Affiliates will, directly or indirectly:
, without the prior written consent of the Board or as expressly permitted herein, (i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership propose, seek or offer to acquire, or knowingly facilitate the acquisition or ownership of, any securities or indebtedness of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, any warrant or option to purchase such securities or indebtedness, any security convertible into any such securities or indebtedness (D) to maintain their aggregate percentage interest in other than, for the Company’s outstanding avoidance of doubt, the issuance of shares of Class A Common Stock; providedStock upon an exchange of shares of Class B Common Stock together with LLC Units), however, that the Investor shall not be permitted to acquire, offer or propose any other right to acquire such securities or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
indebtedness that would result in such Stockholder owning more than forty-nine percent (ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d49%) of the Exchange Act, merger or other business combination relating to all or part outstanding voting power of the Company or (ii) enter, agree to enter, propose, seek or offer to enter into or knowingly facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company on the one hand and any Principal Stockholder or one or more of their Affiliates on the other hand. Notwithstanding the foregoing, each of the GGC Investor and the BSMH Investor shall be entitled to have discussions with the Chief Executive Officer of the Company and the Chairperson of the Board of the Company (if any), or the full Board (or any committee thereof), regarding any of its subsidiaries the matters set forth in this Section 4.5, but only so long as such request or any acquisition transaction for all or part of the assets of proposal does not require public disclosure by the Company or any such Person. This Section 4.5 shall be of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) no further force and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until : (i) the expiration Company enters into a definitive agreement with a person or “group” of persons involving the direct or indirect acquisition of all or a majority of the time period set forth below Company’s equity securities or all or substantially all of the Company’s assets or (ii) any person (other than the Company, Ensemble or their respective Subsidiaries or a Principal Stockholder or its Permitted Transferees with respect to such Principal Stockholder) commences a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company and the Board fails to recommend against such tender offer or exchange offer within ten (10) Business Days of the commencement thereof. Nothing in this Section 5.1(b), but only so long as the Investors or 4.5 shall restrict any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate Stockholder’s ability to monetize its equity investment in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach in compliance with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementsecurities laws.
Appears in 1 contract
Sources: Shareholder Agreements (Ensemble Health Partners, Inc.)
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) In consideration of the outstanding Common Stocktransactions contemplated by this Agreement and the willingness of Transcept to enter into the Collaboration, Purdue hereby agrees that, during the Standstill Period (ii) as defined below), unless the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Companyrestrictions set forth in this Section 14.6 have been specifically waived in writing by Transcept, neither the Investors Purdue nor any of its Affiliates willwill in any manner, directly or indirectly:
(i) acquireeffect or seek, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter intoeffect, or otherwise be involved cause or participate in or part ofin any way advise any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition transactionof securities (or beneficial ownership thereof) if, including a proposed negotiated private sale of after such acquisition, Purdue and its shares of Common Stock to a single purchaser or a “group” Affiliates would beneficially own (as such term is defined in Section 13(d) Rule 13d-3 of the Exchange Act▇▇▇▇ ▇▇▇) in the aggregate 84 [***] percent ([***]%) or more of the voting securities of Transcept then outstanding on a fully diluted as converted basis, whether or not in a tender offer or exchange offer, or any acquisition of Transcept’s assets or business; (B) any tender or exchange offer, merger or other business combination relating involving Transcept; provided however, for the avoidance of doubt, the limitation in this Section 14.6 shall not preclude any such person from selling Transcept securities in a tender or exchange offer initiated by a person other than Purdue or its Affiliates, or from voting Transcept securities owned by it or them in favor of or against any such sale; (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to all Transcept; provided however, this clause (C) shall not apply to any transactions contemplated by this Agreement and shall not preclude any such person from participating in any such transaction as a result of which the percentage interest in Transcept held by Purdue and its Affiliates would not increase from the percentage held by Purdue and its Affiliates immediately prior to such transaction (other than solely as a result of a redemption or part other repurchase by Transcept, whether directly or indirectly, of the Company securities outstanding in a transaction in which none of Purdue nor any of its Affiliates was directly or indirectly a sponsor), or voting Transcept securities owned by it in favor of or against any such transaction, or receiving assets from Transcept upon Transcept’s liquidation (unless Purdue or any of its subsidiaries Affiliates was directly or indirectly a sponsor of such liquidation); or (D) any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” (as soliciting party) of a “proxyproxies” (as such terms are defined under Regulation 14A under used in the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval proxy rules of the election Securities and Exchange Commission) or consents to the Board solely with respect to vote any voting securities of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the BoardTranscept;
(ivii) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder▇▇▇▇ ▇▇▇) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound acquisition by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 person of the Exchange Act) by any Person securities of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty [***] percent (50[***]%) or more of the voting securities of Transcept then outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Controlfully diluted as converted basis;
(iii) on seek alone or in concert with others, to control or influence the decision by management, board of directors or policies of Transcept (other than influence as part of commercial discussions in the Board to recommend that stockholders approve ordinary course of business under this Agreement, any action proposed by a Person pursuant to amendments hereto and/or the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Companyactivities contemplated hereby);
(iv) on take any action (other than to disclose the adoption existence of this Agreement or matters arising hereunder in any Schedule 13D or 13G under the 1934 Act or in any other disclosure required by Applicable Law) which would reasonably be expected to force Transcept to make a public announcement regarding any of the Board types of Directors of a plan of liquidation or dissolutionprohibited matters set forth in this Section 14.6; or
(v) on the occurrence of enter into any material breach by the Company of discussions or arrangements with any Third Party, which discussions or arrangements ultimately result in Purdue or its Affiliates or such Third Party taking any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) foregoing prohibited actions or participating in any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of foregoing prohibited matters.
(b) Purdue also agrees, during the CompanyStandstill Period, not to request Transcept (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and withoutor its directors, officers, employees or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iiiagents), (y) the termination directly or indirectly, to amend or waive any provision of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b14.6 (including this sentence)) shall again be applicable . For purposes hereof, “Standstill [***] Confidential treatment has been requested for so long as portions of this exhibit. These portions have been omitted from this exhibit and only to have been filed separately with the extent provided in this AgreementSecurities and Exchange Commission.
Appears in 1 contract
Sources: License and Collaboration Agreement
Standstill. Senvest agrees that, prior to the date that is three (3) years from the effective date of this Agreement (the “Standstill Period”), it shall not:
(a) The Investors hereby agree that from make, effect, initiate, cause or participate in, at any time without the Closing until prior written consent of the earliest of Company, (i) such time as any acquisition of Beneficial Ownership of the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) Common Stock resulting in an increase in its aggregate Beneficial Ownership of the Common Stock to a number of shares representing 20% or more of the outstanding shares of the Common Stock, (ii) any acquisition of any assets of the fourth (4th) anniversary hereof Company or (iii) a Change any assets of Control any subsidiary or other affiliate of the Company, without (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the prior written approval Company or any subsidiary or other affiliate of the Company, neither or involving any securities or assets of the Investors nor Company or any securities or assets of its Affiliates willany subsidiary or other affiliate of the Company, other than (x) any tender of shares of the Common Stock in an issuer tender offer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or a third party tender offer under the Exchange Act that is recommended by a majority of the current directors of the Company (the “Current Directors”), directors appointed or elected upon the recommendation of the current directors (“Subsequent Directors”) and directors appointed or elected upon the recommendation of the Current Directors and Subsequent Directors (collectively, the “Incumbent Board”) or (y) any merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction not proposed or initiated, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as by Senvest that is recommended by a result majority of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this AgreementIncumbent Board, (Biv) pursuant to a stock split, stock dividend, recapitalization, reclassification any “solicitation” of “proxies” or similar transaction, stockholder consents (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance as such terms are defined under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) Regulation 14A of the Exchange Act, merger or other business combination relating ) with respect to all or part any securities of the Company or any of its subsidiaries or (v) any acquisition transaction stockholder proposals or recommendations or nominations for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely of Directors that would require disclosure in the Company’s proxy statement prepared in connection with respect its annual meetings of stockholders; provided that (subject to any of Section 2 hereof) Senvest may vote the Investor Nominated Directors permitted by Senvest Shares on proposals or nominations that Senvest did not submit for inclusion in the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the BoardCompany’s proxy statement;
(ivb) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director securities of the Company or any of its subsidiaries;
(c) otherwise act, whether alone or in concert with others, to actions taken by seek to propose to the Investors Company, any subsidiary of the Company or any of their Affiliates stockholders any merger, business combination, restructuring, recapitalization or similar transaction to prepare or with the Investor Nominated Directors Company or any of its subsidiaries or otherwise seek or propose to act in such capacity.influence or control the Company’s management or policies;
(bd) The limitations provided in Section 5.1(a) shall, upon take any action that might require the occurrence of Company to make a public announcement regarding any of the following events, immediately be suspended until the expiration types of the time period matters set forth below in clause “(a)” or “(c)” of this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Companysentence;
(iie) on agree or offer to take, or encourage or propose (publicly or otherwise) the decision by the Board or a duly constituted committee of the Board taking of, any action referred to in clause “(a) to solicit one or more proposals for a transaction that)”, if consummated, would result in a Change of Control or “(b) to pursue discussions )”, “(c)” or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change “(d)” of Controlthis sentence;
(iiif) on the decision by the Board assist, induce or encourage any other Person to recommend that stockholders approve take any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that the Company or any of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 5.1(b)(ii4. Notwithstanding anything to the contrary in Section 4 of this Agreement, Senvest may (i) without tender Senvest Shares in any tender offer made to the holders of the Company’s common stock; (ii) vote any Senvest Shares other than the Excess Shares in their exclusive discretion on any matter; and (iii) communicate on a Change confidential basis its intention to so tender or vote the Senvest Shares and its reasons for doing so to its investors (including but not limited to any managed accounts, the securities of Control having occurred and without an agreement which all are Beneficially Owned by Senvest) as of the date of such communication who are contractually obligated to effect a Change treat such information confidentially; provided that in the case of Controlclauses (i), (xii) and (iii) Senvest has not directly or indirectly taken any other action prohibited under in this Section 4. Additionally, nothing in this Agreement will prevent Senvest from communicating with the withdrawal or termination or failure Chief Executive Officer of the solicitation Company to make a proposal for or to negotiate with Senvest in respect of a tender or exchange offer, merger or other business combination, any other of the transactions described in Section 4(a)(i) involving the Company and Senvest, or any amendment or waiver of any provision of this Agreement, so long as such communication is made confidentially and does not require public disclosure. Following the end of the Standstill Period, nothing in this Agreement shall, directly or indirectly, prevent or otherwise limit Senvest from taking any actions referred to in clauses (a)-(h) of this Section 5.1(b)(iii)4 or related thereto, (y) and in each case without notice to or consultation with the termination Company. The expiration of the plan Standstill Period will not terminate or otherwise affect any of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy other provisions of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Shareholder Agreement (Senomyx Inc)
Standstill. (a) The Investors hereby agree that from From and after the Closing until date of this Agreement and for a period ending on the earliest to occur of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, five years or (ii) three years in the fourth (4th) anniversary hereof or (iii) a Change of Control event that five of the Companyindividuals who, without the prior written approval as of the Companydate hereof, constitute the Board of Directors of the Purchaser cease for any reason to serve on the Board; neither the Investors Seller nor any of its his Affiliates will, directly or indirectlyshall:
(i) acquiresolicit proxies or be or become a member of a group which solicits proxies (as used herein, the term "proxy" shall have the meaning provided in Regulation 14A promulgated by the Securities and Exchange Commission under the Exchange Act) for the purpose of (i) removing from office, or nominating or voting for a candidate to run in opposition to, any person who is serving as a director of Purchaser at the date of this Agreement or any person who may hereafter be elected to the board of directors of Purchaser as a result of the nomination or recommendation by at least a majority of those persons serving as directors of Purchaser at the date of this Agreement, or (ii) vote against or otherwise opposing any matter which has been proposed or recommended by the board of directors of Purchaser which is then comprised of persons at least a majority of which are persons serving as directors of Purchaser at the date of this Agreement and any persons who may hereafter be elected to the board of directors of Purchaser based upon the nomination or recommendation by at least a majority of those persons serving as directors of Purchaser at the date of this Agreement; or
(ii) permit any entity under his, her or its control (including but not limited to subsidiaries and employee pension, profit sharing or other trusts under his, her or its investment management control) to acquire or offer or propose to acquire or agree to acquire, Beneficial Ownership directly or indirectly, by purchase or otherwise, any Purchaser Common Stock or any option to purchase Purchaser Common Stock in excess of any Voting Securities, other than Voting Securities acquired (A) as a result 5 % of the exercise of any rights total shares outstanding (without regard to the Purchase Consideration); or
(iii) acquire or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership directly or indirectly, by purchase or otherwise shares of Purchaser Common Stock or any Voting Securities option to account for the dilutive effect purchase Purchaser Common Stock by any Person in excess of any issuance of equity securities up to a maximum 5 % of the 4,329 total shares outstanding (without regard to the Purchase Consideration); or
(iv) finance or arrange the financing or participate in the financing of the acquisition of Purchaser Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as by any Person (excluding from this subsection d any financing provided by Bank of the date hereof;Oklahoma, N.A.); or
(iiv) enter into join or agreepermit any Affiliate of its to join a partnership, offerlimited partnership, propose or seek (whether publicly or otherwise) to enter intosyndicate, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale other group (within the meaning of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act) for the purpose of acquiring or holding Purchaser Common Stock within the meaning of Section 13(d) of the Exchange Act; or
(vi) initiate, merger propose or otherwise solicit shareholders for any matter at any time, or induce or attempt to induce any other Person to initiate any stockholder proposal or a tender offer for shares of Purchaser Common Stock or any change of control of Purchaser, or for the purpose of convening a stockholders' meeting of Purchaser; or
(vii) other than in connection with this Agreement, acquire or permit any entity under his, her or its control (including but not limited to subsidiaries and employee pension, profit sharing or other business combination relating trusts under his, her or its investment management control) to all acquire, by purchase or part otherwise, more than 5% of any class of equity securities of any entity which, prior to the Company time such entity acquires more than 5% of such class, is the beneficial owner of, or any intends to acquire more than 5% of its subsidiaries Purchaser Common Stock; or
(viii) seek or any acquisition transaction for all propose to influence or part of the assets of the Company control Purchaser's management or any of its subsidiaries policies (or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock request information to a single purchaser or a “group” do so). Seller will not be permitted if the purchasing party agrees in writing to be bound by the provisions breach of this Section 5.1;11.1(a)(viii) if he privately discusses with Purchaser the Purchaser's ongoing business operations or presents commercial business opportunities to the Purchaser in the ordinary course of business; or
(iiiix) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Actenter into discussions, disregarding clause (iv) of Rule 14a-1(1)(2) and including negotiations, arrangements or understandings with any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely third party with respect to any of the Investor Nominated Directors permitted by foregoing; or
(x) transfer more than five percent of the terms hereof Purchaser's outstanding Common Stock to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any a single person or entity with respect group (as that term is used in Section 13 of the Securities Exchange Act of 1934, as amended) without obtaining from such transferee a commitment or agreement subjecting such persons to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or restrictions set forth in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement11.1; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.or
(b) The limitations provided in Section 5.1(a) shallNotwithstanding anything herein to the contrary, upon for 2 years after the occurrence date of any of this Agreement the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of Seller and his Affiliates will vote all their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of Purchaser Common Stock in accordance with the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption recommendation made by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this AgreementPurchaser, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors except with respect to the Company setting forth matters concerning compensation and rights plans in such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to manner as Seller shall determine in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementhis sole discretion.
Appears in 1 contract
Sources: Stock Purchase Agreement (Unit Corp)
Standstill. (a) 6.1.1 The Investors hereby agree that from the Closing until the earliest of (i) such time standstill obligation, as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stockset out in this Article 6.1, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive will take effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions Date of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) Agreement and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation will terminate on the Board or a change in the composition earlier of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of date that is ten (10) years following the solicitation referred to in Section 5.1(b)(iii), date on which the Closing occurs and (y) the termination of this Agreement if the plan Closing does not occur (the “Standstill Period”).
6.1.2 During the Standstill Period, the Investor, the Parent Investor or any of their Affiliates, shall not:
(i) without the express written consent of the Issuer, directly or indirectly acquire any additional Equity Securities (other than the Warrants) of the Issuer, if after giving effect to such acquisition the Investor, the Parent Investor, any of the Affiliates of the Investor or the Parent Investor, or any other party Acting in Concert with the Investor, the Parent Investor or any of the Affiliates of the Investor or the Parent Investor would (without taking into account the Warrants or the shares issuable (but not yet issued) thereunder owned by them at that time) together in the aggregate directly or indirectly own or have the right to acquire more than 29.9% of the then issued and outstanding voting securities of the Issuer (assuming the exercise, conversion or exchange of any Equity Securities held by any of them at any time (other than the Warrants) that are exercisable, convertible or exchangeable into or for shares of the Issuer at such time) (the resulting number of securities rounded down) (the “Standstill Limit”);
(ii) directly or indirectly encourage or support a tender, exchange or other offer or proposal by a third party;
(iii) propose (a) any merger, consolidation, business combination, tender or exchange offer, purchase of the Issuer’s assets or businesses, or similar transaction involving the Issuer or (b) any recapitalization, restructuring, liquidation referenced or other extraordinary transaction with respect to the Issuer (it being understood that the Investor’s Chief Executive Officer may contact the Issuer’s Chief Executive Officer on a non-public and non-committal basis to gauge the Issuer’s Chief Executive Officer’s views on the Issuer’s potential interest in Section 5.1(b)(ivany such matter described in clause (a) or (b)); or
(iv) directly or indirectly (a) submit matters to, request that matters be submitted to, or request the convening of, a general meeting of the shareholders of the Issuer, or (zb) solicit proxies or consents, or become a participant in a solicitation in relation to matters submitted to a general meeting of the remedy shareholders of the Issuer, in each case of (a) and (b) without or against the recommendation or support by the Board of Directors except that Investor may solicit proxies or consents and may become a participant in a solicitation in connection with any breach described in Section 5.1(b)(v)proposal that would adversely affect its rights under this Agreement, the limitations provided in Section 5.1(a) (except to Warrants, or the extent then suspended Option, License and Collaboration Agreement or as a result shareholder of any other event specified in the Issuer, and may also make a proposal pursuant to Article 7.3.1, provided that the provisions of this Section 5.1(b)Article 6.1.2(iv) shall again be applicable for so long as automatically cease to apply when the Investor ceases to have the right to appoint Investor Board Designees pursuant to Article 7.3;
(a) make public statements with respect to (save if legally obliged to) or, (b) with the actual knowledge of the Parent Investor’s executive officers, provide assistance to, commit to, or discuss or enter into any agreement or arrangement with any party to do, any of the foregoing prohibited actions provided that in relation to prohibited actions in subsection (ii) that have been committed without the actual knowledge of the Parent Investor’s executive officers, the Investor and only to Parent Investor shall promptly terminate and unwind such actions upon written request of the extent provided in this AgreementIssuer.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from During the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the CompanyStandstill Term, neither the Investors Investor nor any of its Affiliates will(collectively, the “Standstill Parties”) shall (and the Investor shall cause its Affiliates not to), except as expressly approved or invited in writing by the Company:
(a) directly or indirectly:
(i) acquire, acquire beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, or make a tender, exchange or other offer or propose to acquire or agree to acquire, Beneficial Ownership Shares of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Then Outstanding Common StockStock and/or Common Stock Equivalents; provided, however, that notwithstanding the Investor provisions of this Section 8.1(a), if the number of shares constituting Shares of Then Outstanding Common Stock is reduced or if the aggregate ownership of the Standstill Parties is increased as a result of a repurchase by the Company of Shares of Then Outstanding Common Stock, stock split, stock dividend or a recapitalization of the Company, the Standstill Parties shall not be permitted required to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership dispose of any Voting Securities of their holdings of Shares of Then Outstanding Common Stock even though such action resulted in the Standstill Parties’ beneficial ownership increasing;
(b) directly or indirectly, seek to account for the dilutive effect of have called any issuance of equity securities up to a maximum meeting of the 4,329 shares stockholders of Common Stock authorized the Company, propose or nominate for issuance under election to the Company’s 2013 Equity Incentive Plan as Board of Directors any person whose nomination has not been approved by a majority of the date hereofCompany’s Board of Directors or cause to be voted in favor of such person for election to the Company’s Board of Directors any Shares of Then Outstanding Common Stock;
(iic) enter into directly or agreeindirectly, offerencourage or support a tender, propose exchange or seek (whether publicly other offer or otherwise) proposal by any Third Party with respect to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale Shares of its shares of Then Outstanding Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businessesCommon Stock Equivalents; provided, however, that negotiated private sales from and after the filing of shares a Schedule 14D-9 (or successor form of Common Stock to a single purchaser or a “group” will be permitted if Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 under the purchasing party agrees in writing to be bound ▇▇▇▇ ▇▇▇) by the provisions Company recommending that stockholders accept any such offer or proposal, Investor shall not be prohibited from taking any of the actions otherwise prohibited by this Section 5.18.1(c) only for so long as the Company maintains and does not withdraw such recommendation;
(iiid) other than directly or indirectly, solicit proxies or consents or become a “solicitation” of participant in a “proxy” solicitation (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause (iv▇▇▇▇ ▇▇▇) in opposition to the recommendation of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval a majority of the election to the Company’s Board solely of Directors with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to votematter, or seek to advise or influence any person Person, with respect to voting of any Shares of Then Outstanding Common Stock;
(e) deposit any Shares of Then Outstanding Common Stock in a voting trust or entity subject any Shares of Then Outstanding Common Stock to any arrangement or agreement with respect to the voting election of any director to the Boardsuch Shares of Then Outstanding Common Stock;
(ivf) call propose (i) any merger, consolidation, business combination, tender or seek to call a meeting of the Common Stockholders of the Company or any exchange offer, purchase of the Company’s subsidiaries assets or initiate businesses, or similar transaction involving the Company or (ii) any stockholder proposal for action by the Common Stockholders of recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
(g) act in concert with any Third Party to take any action in clauses (a) through (e) above, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities1934 Act;
(vh) deposit enter into discussions, negotiations, arrangements or agreements with any Securities Person relating to the foregoing actions referred to in (a) through (e) above; provided, however, that (A) nothing in the foregoing clause (b) shall prohibit the Investor from proposing to the Company’s Nominating and Corporate Governance Committee (and not pursuant to the advance notice provisions set forth in the Company’s bylaws), in a confidential, nonpublic manner, potential director candidates for consideration by the Company’s Nominating and Corporate Governance Committee, which candidates the Investor believes would be in the best interest of the Company into a voting trust unless such voting trust is bound by the provisions of and its stockholders; and (B) nothing contained in this Section 5.1, 8.1 prohibits the Investor or subject the Securities its Affiliates from acquiring a company or business that owns Shares of Then Outstanding Common Stock and/or Common Stock Equivalents provided that any such securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms so acquired will be subject to the provisions of this Section 5.1;8.1; or
(vii) seek representation on request or propose to the Company’s Board of Directors (or a change in the composition any committee thereof), any member(s) thereof or any officer of the Board Company that the Company amend, waive, or number of directors elected by consider the holders of Common Stock amendment or a change waiver of, any provisions set forth in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.18.1 (including this clause (i)); provided, however, that (A) nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below contained in this Section 5.1(b8.1 shall prohibit the Investor from making proposals to the Company’s Chairman or Chief Executive Officer on a confidential, nonpublic basis for a proposed transaction between the parties of the type described in the foregoing clauses (a) and (f), but only so long as the Investors Investor reasonably believes in good faith, based on the written advice of its outside counsel, that neither it nor the Company would reasonably be expected to be required by applicable Law or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in stock exchange requirement to disclose publicly any such events:
proposal and (iB) on nothing in the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or foregoing clause (b) shall prohibit the Investor from proposing to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
the Company’s Nominating and Corporate Governance Committee (iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person and not pursuant to the filing of advance notice provisions set forth in the Company’s bylaws), on a preliminary proxy statement with respect to confidential, non-public basis, potential director candidates for consideration by the commencement of a proxy or consent solicitation subject to Section 14 Company’s Nominating and Corporate Governance Committee, which candidates the Investor believes would be in the best interest of the Exchange Act Company and its stockholders, so long as the Investor reasonably believes in good faith, based on the written advice of its outside counsel, that neither it nor the Company would reasonably be expected to elect be required by applicable Law or remove stock exchange requirement to disclose publicly any directors such proposal. None of (x) the ownership nor purchase by an employee benefit plan of the Company;
(iv) on Investor or the adoption Investor’s Affiliates in any diversified index, mutual or pension fund managed by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreementan independent advisor, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal fund in-turn holds, directly or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities indirectly, securities of the Company, (vy) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, transfers or the termination of, an agreement to effect a Change of Control, or the decision resales of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment Shares by the Board or a duly constituted committee of the Board of a process Investor to solicit a proposal of the type referred to any other person in compliance with Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), 7.5 or (z) the remedy mere voting of any the Shares, will be deemed to be a breach described in Section 5.1(b)(v), of the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in Investor’s standstill obligations under this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement8.1.
Appears in 1 contract
Sources: Securities Purchase Agreement (Translate Bio, Inc.)
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own Unless approved in advance in writing by at least four and ninetwo-tenths percent (4.9%) thirds of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control directors of the CompanyBoard of Directors of Red Lion, without the prior written approval of the Company, Navy agrees that neither the Investors it nor any of its Affiliates controlled affiliates will, and that it will use its reasonable best efforts to cause its directors and officers not to, directly or indirectly, except as otherwise provided in this Agreement, until the end of the Standstill Period:
(i) acquire, offer directly or propose to acquire or agree to acquireindirectly, Beneficial Ownership beneficial ownership of any Voting Securitiesadditional Red Lion Common Shares or other equity securities of Red Lion, other than Voting Securities acquired (Ai) by exercising any preemptive rights available to Navy or its affiliates or (ii) as a the result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalizationbonus issue, reclassification share subdivision, reverse stock split or similar transaction, transaction (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect avoidance of doubt, that notwithstanding the foregoing Navy and its controlled affiliates may purchase, in the aggregate, a number of Red Lion Common Shares equal to the number they have sold from after Closing (as adjusted for any issuance of equity securities up to a maximum stock split, stock dividend, bonus issue, share subdivision, reverse stock split or similar transaction); enter into arrangements, understandings or agreements (whether written or oral) with, or advise, finance or assist any other person in connection with any of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;foregoing; or
(ii) enter into arrangements, understandings or agree, offer, propose or seek agreements (whether publicly written or otherwiseoral) to enter intowith, or otherwise be involved advise, finance or assist any other person in or part of, connection with any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businessesforegoing; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;or
(iii) request, propose or otherwise seek, in each case in a manner that would require public disclosure, any amendment or waiver of the provisions contained in clauses (i)-(ii) above.
(b) Unless approved in advance in writing by at least two-thirds of the directors of the Board of Directors of Red Lion, Navy agrees that neither it nor any of its directors, officers or controlled affiliates will, directly or indirectly, except as otherwise provided in this Agreement, until the end of the Standstill Period:
(i) seek, make or take any action to solicit or encourage any offer or proposal for any merger, amalgamation consolidation, tender or exchange offer, sale or purchase of assets or securities or other than business combination, restructuring, recapitalization or similar transaction involving Red Lion;
(ii) “solicit” or become a “participant” in any “solicitation” of a any “proxy” (as such terms are defined under in Regulation 14A under the Exchange Act, disregarding clause ) from any holder of Red Lion Common Shares in connection with any vote on any matter (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant whether or not relating to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any or removal of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makedirectors), or in agree or announce its intention to vote with any way participate in, any such person undertaking a “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board”;
(iviii) call form or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join in or in any way participate in a “group” (within the meaning of as defined under Section 13(d)(3) of the Exchange Act and or the rules and regulations thereunder) promulgated thereunder with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, Red Lion Common Shares or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions equity securities of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the CompanyRed Lion;
(iv) on the adoption grant any proxies to any third party with respect to any Red Lion equity securities (other than as recommended by the Board of Directors of Red Lion) or deposit any Red Lion equity securities in a plan voting trust or enter into any other arrangement, understanding or agreement (whether written or oral) with a third party with respect to the voting thereof;
(v) seek, alone or in concert with other persons, additional representation on, or propose any changes to the size of, the board of liquidation directors of Red Lion;
(vi) enter into arrangements, understandings or dissolutionagreements (whether written or oral) with, or advise, finance or assist any other person in connection with any of the foregoing; or
(vvii) on the occurrence of request, propose or otherwise seek, in each case in a manner that would require public disclosure, any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal amendment or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) waiver of the outstanding Voting Securities of the Company, provisions contained in clauses (vi)-(vi) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementabove.
Appears in 1 contract
Standstill. (a) The Investors hereby agree that from the Closing Each Sponsor agrees that, until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the CompanyStandstill Termination Date, without the prior written approval consent of the CompanyBoard of Directors (excluding any Board Designee), neither the Investors nor any such Sponsor shall not and such Sponsor shall cause each of its Affiliates willnot to, directly or indirectly:
(i) acquire, acquire or Beneficially Own Voting Stock or authorize or make any offer or propose to acquire Voting Stock, if the effect of such acquisition or agree offer (if consummated) would be to acquire, Beneficial Ownership increase the percentage of the Voting Stock represented by all shares of Voting Stock Beneficially Owned by such Sponsor and its Affiliates to more than 1% of the Voting Stock outstanding (not including any Common Stock received by a Purchaser upon conversion of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofNote);
(ii) enter into authorize, commence, encourage, support or agree, offer, propose endorse any tender offer or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its exchange offer for shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1Voting Stock;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate inparticipate, directly or indirectly, in any such “solicitation” of “proxies” to votevote (as such terms are used in the rules of the SEC), or seek to advise or influence any person or entity Person with respect to the voting election of any director to the BoardVoting Stock;
(iv) call publicly announce or seek submit to call the Company a meeting of the Common Stockholders of proposal or offer concerning (with or without conditions) any extraordinary transaction involving the Company or any successor thereto, any Subsidiary or division thereof, or any of the Company’s subsidiaries their securities or initiate any stockholder proposal for action by the Common Stockholders of the Company, assets;
(v) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the Exchange Act and Act, for the rules and regulations thereunder) with respect to purpose of acquiring, holding, voting or disposing of any Voting Securities;
(v) deposit any Securities securities of the Company into a voting trust unless such voting trust is bound (provided that nothing herein shall prohibit the Purchasers and their Affiliates from coordinating, among themselves and transferees, disposition of Securities held by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1them);
(vi) seek representation on take any action that could reasonably be expected to require the Board Company or any successor thereto to make a change in public announcement regarding the composition possibility of any of the Board or number of directors elected by the holders of Common Stock or a change events described in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; andclauses (i) through (v) above;
(vii) bring enter into any action arrangements with any third party concerning any of the foregoing; or
(viii) request the Company or otherwise act any of its Representatives, directly or indirectly, to contest the validity amend or waive any provision of this Section 5.1; provided5.6.
(b) The restrictions set forth in Section 5.6(a) will not apply as to a Sponsor and its Affiliates if any of the following occurs (provided that if any event described in this Section 5.6(b) occurs and, that nothing during the twelve-month period following such event, none of the transactions described in clauses (ii), (iii), ) or (iv) or (viof the definition of Designee Termination Date has occurred, then the restrictions set forth in Section 5.6(a) of this Section 5.1(a) shall will thereafter resume and continue to apply to the Investor Nominated Director(s) solely in his or her capacity KKR if a Board Designee is then serving as a director member of the Board of Directors, provided, further, at the time of any such resumption of the restrictions set forth in Section 5.6(a), if the number of shares of Voting Stock then Beneficially Owned by KKR and its Affiliates exceeds 1% of the Voting Stock outstanding (not including any Common Stock received by a Purchaser upon conversion of any Notes), neither KKR nor any of its Affiliates shall be required to dispose of any shares of Voting Stock Beneficially Owned by them but, in such event, neither KKR nor any of its Affiliates may then acquire Beneficial Ownership of additional Voting Stock (other than Common Stock received by a Purchaser upon conversion of any Notes) unless the Beneficial Ownership percentage of KKR and its Affiliates would, following such acquisition, be an amount below 1% of the Voting Stock then outstanding (not including any Common Stock received by a Purchaser upon conversion of any Notes)):
(i) a third party who is not an Affiliate of such Sponsor (a “Third Party”) acquires beneficial ownership of 50% of the outstanding Voting Stock; or
(ii) the Company enters into an agreement pursuant to which a Third Party would acquire all or substantially all of the stock or assets of the Company or the Company would be merged or consolidated with another Person, unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to actions taken the consummation of such transaction would continue to hold (in substantially the same proportion as their ownership of the Company’s voting stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction or any direct or indirect parent thereof.
(c) Nothing in clause (ii) or clause (v) of Section 5.6(a) shall be construed to prohibit the Board Designee, in good faith and in the performance of his or her duties as a member of the Board of Directors, or the Board Observer, in each case, from confidentially discussing a proposal made by the Investors Company or a Third Party concerning any extraordinary transaction involving the Company or any successor thereto, any Subsidiary or division thereof, or any of their Affiliates to prepare securities or assets, with the Investor Nominated Board of Directors to act and representatives of the Company and its advisors who are involved in the evaluation or execution of any such capacityproposal on behalf of the Company.
(bd) The limitations provided in Notwithstanding Section 5.1(a) shall5.6(a), upon an increase in the occurrence Beneficial Ownership percentage of a Sponsor and its Affiliates to an amount in excess of 1% of the Voting Stock outstanding (not including any Common Stock received by a Purchaser upon conversion of any Notes) resulting solely from a repurchase or redemption of Voting Stock by the Company or any similar transaction that reduces the number of outstanding shares of Voting Stock of the following eventsCompany, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or neither such Sponsor nor any of their its Affiliates did not directly or indirectly assistshall be required to dispose of any Securities Beneficially Owned by them; provided, facilitatehowever, encourage or participate that in such event, neither such Sponsor nor any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to its Affiliates may acquire Beneficial Ownership of fifty percent additional Voting Stock (50%other than Common Stock received by a Purchaser upon conversion of any Notes) unless the Beneficial Ownership percentage of such Sponsor and its Affiliates would, following such acquisition, be an amount below 1% of the Voting Stock then outstanding (not including any Common Stock received by a Purchaser upon conversion of any Notes).
(e) Each Sponsor agrees that, until the Standstill Termination Date, such Sponsor shall promptly notify the Company of any new acquisition or disposition, or entry into any agreement or arrangement which could reasonably be expected to result in any new acquisition or disposition, of Beneficial Ownership of Voting Stock or Securities by such Sponsor or any of its Affiliates, including the material details thereof.
(f) Notwithstanding anything to the contrary provided elsewhere herein, (i) Affiliates of a Sponsor that are not engaged in the private equity business (“Non-Investor Affiliates”) shall not be considered “Affiliates” of such Sponsor for purposes of this Section 5.6 if any actions taken by them are not taken under the direction of such Sponsor or any of its Affiliates (other than Non-Investor Affiliates) or more any officer or general partner of the outstanding shares such Sponsor or any of Voting Securities of the Company;
its Affiliates (other than Non-Investor Affiliates) and if Confidential Information is not made available to such Non-Investor Affiliates or their Representatives, and (ii) on the decision by the Board or a duly constituted committee (A) none of the Board provisions of this Section 5.6 of this Agreement shall in any way limit the activities of G▇▇▇▇▇▇, S▇▇▇▇ & Co. and its Affiliates (aother than the PIA Funds), and (B) to solicit one or more proposals for a transaction thatG▇▇▇▇▇▇, if consummatedSachs & Co. and its Affiliates (other than the PIA Funds) may engage in any brokerage, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials availableinvestment advisory, with respect to an unsolicited proposal for a transaction thatfinancial advisory, if consummatedanti-raid advisory, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement merger advisory, financing, asset management, trading, market making, arbitrage, investment activity and other similar activities with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Note Purchase Agreement (Harman International Industries Inc /De/)
Standstill. Each Purchaser shall not (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their shall cause its Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Companynot to), without the prior written approval consent of the Company, neither the Investors nor any 's Board of its Affiliates will, directly or indirectlyDirectors:
(ia) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted announce an intention to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of directly or indirectly, any Voting Securities to account for the dilutive effect of any issuance of equity voting securities up to a maximum of the 4,329 shares Company as a result of Common Stock authorized for issuance under which acquisition the Company’s 2013 Equity Incentive Plan as Purchasers (and their Affiliates), collectively, would beneficially own more than 32.5% of the date hereofoutstanding capital stock of the Company on a fully diluted basis, other than acquisitions by way of share dividends or other distributions pro rata to holders of voting securities;
(iib) enter into propose that the Purchasers or agree, offer, propose or seek (whether publicly or otherwise) to any Affiliates of the Purchasers enter into, directly or otherwise be involved in or part ofindirectly, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of involving the Company or any of its subsidiaries propose to purchase, directly or any acquisition transaction for all or part indirectly, a material portion of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1Subsidiaries;
(iiic) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such “solicitation” of “proxies” terms are used in Regulation 14A promulgated under the Exchange Act) to vote, vote or seek to advise or influence any person or entity consent with respect to any voting securities of the voting election of any director Company (whether or not such solicitation is subject to regulation under Regulation 14A promulgated under the BoardExchange Act);
(ivd) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in or encourage the, formation of a “"group” " with any person (within the meaning of Section 13(d)(3) of the Exchange Act Act), other than with the Purchaser's Affiliates, any other Purchaser and the rules and regulations thereunder) with respect to any Voting Securitiessuch other Purchaser's Affiliates;
(ve) deposit any Securities voting securities of the Company into a voting trust unless or subject any such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company securities to any arrangement or agreement or arrangement with respect to the voting of such Securities, or disposition thereof (other agreement or arrangement having similar effect unless such agreement or arrangement conforms to than any that may be effected among the provisions of this Section 5.1Purchasers and their Affiliates);
(vif) initiate, propose or otherwise solicit stockholders of the Company for the approval of one or more stockholder proposals with respect to the Company as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any other person to initiate any such stockholder proposal with respect to the Company;
(g) except in accordance with Section 3 of this Agreement, seek representation election to or seek to place a representative on the Company's Board of Directors or seek the removal of any member of the Company's Board of Directors;
(i) solicit, seek to effect, negotiate with or provide non-public information to any other person with respect to, (ii) make any statement or proposal, whether written or oral, to the Company's Board of Directors or any director or officer of the Company with respect to, or (iii) otherwise make any public announcement or proposal whatsoever with respect to, any form of business combination transaction (with any person) involving a change of control of the Company or the acquisition of a substantial portion of the equity securities or assets of the Company or any of its Subsidiaries, including a merger, consolidation, tender offer, exchange offer or liquidation of the Company's assets, or any restructuring, recapitalization or similar transaction with respect to the Company or any of its Subsidiaries; PROVIDED, HOWEVER, that the foregoing shall not (A) apply to discussions between or among the Purchasers, their Affiliates or any of their employees, agents or representatives or (B) in the composition case of clause (ii) above, limit the ability of any designee of the Purchasers on the Company's Board of Directors to make any such statement or number proposal or to discuss any such proposal with any officer or director of directors elected by or advisor to the holders Company or advisor to the Company's Board of Common Stock Directors unless, in either case, it would reasonably be expected to require the Company to make a public announcement regarding such discussion, statement or proposal;
(i) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company (except for (A) voting in its full discretion as a change holder of voting securities in accordance with the number terms of such directors who represent voting securities and, if applicable, together with the Investor, other than as expressly permitted pursuant to this Agreement; and
Purchasers and the Purchasers' Affiliates and (viiB) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity actions taken as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.Company);
(bj) The limitations provided in Section 5.1(a) shallrequest, upon or take any action to obtain, any list of holders of voting securities of the occurrence Company for the purpose of accomplishing any of the following events, immediately be suspended until the expiration of the time period set forth below actions in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(iSections 4(a)-(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Companyhereof;
(iik) on publicly disclose any intention, plan or arrangement inconsistent with the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction thatforegoing, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials availableany such disclosure privately if it would reasonably be expected to require the Company to make a public announcement regarding such intention, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy plan or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutionarrangement; or
(vl) on the occurrence of advise, assist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage any material breach by the Company of other person in connection with any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementforegoing.
Appears in 1 contract
Standstill. Each member of the Ardsley Group agrees that other than as may be required by applicable law, order or regulation, during the Standstill Period, it or he will not, and it or he will cause each of its or his Affiliates or agents or other persons acting on its or his behalf not to:
(a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval agreement of the CompanyCompany (as authorized by the Board by a majority vote, neither excluding the Investors nor any of its Affiliates willDesignee Directors), directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership alone or in concert with any other individual or entity, by purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership of any Voting Securities, other than Voting Securities acquired (A) as a result securities of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than 14.99% of the outstanding Common Stock (D) to maintain their aggregate percentage interest in calculated based on the Company’s outstanding Common Stocklatest annual or quarterly report with the SEC pursuant to Section 13 or 15(d) of the Exchange Act); provided, however, that the Investor such limitation shall not be permitted apply to acquire, offer shares acquired in connection with stock dividends or propose to acquire similar distributions or agree to acquire, Beneficial Ownership offerings of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Company Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as made available generally on a pro rata basis to holders of the date hereofCompany Common Stock;
(iib) enter into or agree, offer, propose or seek submit any stockholder proposal (whether publicly pursuant to Rule 14a-8 under the Exchange Act or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale notice of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger nomination or other business combination relating to all for consideration, or part of the Company or nominate any of its subsidiaries or any acquisition transaction candidate for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of or oppose the Investor Nominated Directors director candidates nominated by the Board, other than as expressly permitted by the terms hereof to serve on such Boardthis Agreement;
(c) form, make, join in or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join 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 Ardsley Group or one or more Affiliates of a member of the Ardsley Group with respect to the Common Stock currently owned as set forth in the Ardsley Group’s latest amendment to its Schedule 13D or Common Stock acquired in the future (subject to the limitations set forth in Section 6(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders, or engage in or conduct any binding or nonbinding referendum with respect to the Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting, provided that the foregoing shall not be deemed to restrict such actions in connection with a proposed merger or sale of the Company, change in control of the Company, recapitalization or liquidation of the Company, acquisition or disposition by the Company;
(e) call, seek to call, or to request the calling of, a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement, provided that the foregoing shall not be deemed to restrict such actions in connection with a proposed merger or sale of the Company, change in control of the Company, recapitalization or liquidation of the Company, acquisition or disposition by the Company;
(f) vote for any nominee or nominees for election as directors other than those nominated by or supported by the Board or seek the removal of any member of the Board;
(g) without the prior written agreement of the Company (as authorized by the Board by a majority vote, excluding the Director Designees), effect, offer or propose (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries by the Ardsley Group, (ii) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries and the rules and regulations thereunderArdsley Group, or (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company or any of its subsidiaries; provided, however, that limitations in this Section 6(g) shall not prohibit (A) the tender of shares of Company Common Stock in response to a bona fide tender offer made in compliance with the Exchange Act, (B) the voluntary exchange of shares of Company Common Stock in response to a bona fide exchange offer made in compliance with the Securities Act of 1933, as amended, Exchange Act, (C) the voting of shares of Company Common Stock in connection with a bona fide merger proposal, sale of material assets, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction for which stockholder approval is solicited pursuant to the Company’s certificate of incorporation and/or applicable law or (D) purchases or sales of Company Common Stock in the open market (subject to the limitations described in Section 6(a)); provided, further, that the limitations in this Section 6(g) shall not apply in the event that a third party unrelated to the Ardsley Group signs an agreement with the Company effectuating any of the transactions described in clauses (i) through (iii) above;
(h) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of this Section 6, or otherwise seek, in any manner that would require public disclosure by any of the members of the Ardsley Group or their Affiliates or Associates, to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(i) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any Voting Securitiessecurity (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(vj) deposit enter into any Securities arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the Company into a voting trust unless such voting trust is bound by foregoing; provided, that the provisions of this Section 5.1, or subject the Securities of the Company subsection 6(j) shall not be deemed to prohibit any agreement or arrangement action with respect to a proposed transaction described in Section 6(g) above except to the voting extent such transaction involves a member of such Securitiesthe Ardsley Group as a party; or
(k) take or cause or induce or assist others to take any action inconsistent with any of the foregoing; provided, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to that the provisions of this Section 5.1;
(visubsection 6(k) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant shall not be deemed to this Agreement; and
(vii) bring prohibit any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a proposed transaction that, if consummated, would result described in a Change of Control;
(iiiSection 6(g) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant above except to the filing of extent such transaction involves a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 member of the Exchange Act Ardsley Group as a party. The foregoing shall not be deemed to elect or remove prohibit the Designee Directors from engaging in any lawful act in their capacities as directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Settlement and Standstill Agreement (Comverge, Inc.)
Standstill. (a) 6.1.1 The Investors hereby agree that from the Closing until the earliest of (i) such time standstill obligation, as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stockset out in this Article 6.1, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive will take effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions Date of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) Agreement and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation will terminate on the Board or a change in the composition earlier of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of date that is ten (10) years following the solicitation referred to in Section 5.1(b)(iii), date on which the Closing occurs and (y) the termination of this Agreement if the plan Closing does not occur (the “Standstill Period”).
6.1.2 During the Standstill Period, the Investor, the Parent Investor or any of liquidation referenced in Section 5.1(b)(iv)their Affiliates, shall not:
(i) without the express written consent of the Issuer, directly or indirectly acquire any additional Equity Securities (other than the Warrants) of the Issuer, if after giving effect to such acquisition the Investor, the Parent Investor, any of the Affiliates of the Investor or the Parent Investor, or any other party Acting in Concert with the Investor, the Parent Investor or any of the Affiliates of the Investor or the Parent Investor would (zwithout taking into account the Warrants or the shares issuable (but not yet issued) thereunder owned by them at that time) together in the remedy aggregate directly or indirectly own or have the right to acquire more than 29.9% of the then issued and outstanding voting securities of the Issuer (assuming the exercise, conversion or exchange of any breach Equity Securities held by any of them at any time (other than the Warrants) that are exercisable, convertible or exchangeable into or for shares of the Issuer at such time) (the resulting number of securities rounded down) (the “Standstill Limit”);
(ii) directly or indirectly encourage or support a tender, exchange or other offer or proposal by a third party;
(iii) propose (a) any merger, consolidation, business combination, tender or exchange offer, purchase of the Issuer’s assets or businesses, or similar transaction involving the Issuer or (b) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Issuer (it being understood that the Investor’s Chief Executive Officer may contact the Issuer’s Chief Executive Officer on a non-public and non-committal basis to gauge the Issuer’s Chief Executive Officer’s views on the Issuer’s potential interest in any such matter described in Section 5.1(b)(vclause (a) or (b), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.; or
Appears in 1 contract
Standstill. During the Cooperation Period, each Investor Party will not, and will cause its respective Affiliates and Representatives acting on its behalf (acollectively with the Investor Parties, the “Restricted Persons”) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stockto not, (ii) the fourth (4th) anniversary hereof directly or (iii) a Change of Control of the Companyindirectly, without the prior written approval consent or authorization of the Company, neither Company or the Investors nor any of its Affiliates will, directly or indirectlyBoard:
(i) (A) acquire, by purchase or otherwise, alone or in concert with any Third Party, any Company Interests if such acquisition would result in the Investor Parties (together with their Affiliates) having Beneficial Ownership of more than 14.9% of the Common Stock outstanding at such time; (B) acquire, by purchase or otherwise, alone or in concert with any Third Party, indebtedness (or shares of preferred stock) outstanding under Debt Instruments if such acquisition would result in the Investor Parties (together with their Affiliates) holding in excess of 25% of the total aggregate principal amount of indebtedness (and liquidation preference) then outstanding under Debt Instruments (including, for the purposes of this clause, the outstanding amount of any debt drawn under the revolving credit facility as of the most recently filed Form 10-Q or 10-K by the Company, and excluding, any amounts drawn under securitization facilities); (C) Transfer any Company Interests to a Restricted Transferee in one or a series of related (x) private transactions and/or (y) other transactions where the purchaser in the Transfer is actually known to the Restricted Persons to be a Restricted Transferee; (D) Transfer all or substantially all, directly or indirectly, of the voting rights of the underlying Common Stock held by the Restricted Persons to any Third Party decoupled from such underlying Common Stock, or (E) effect, cause or knowingly participate in, or in any way knowingly assist, facilitate or encourage any Third Party to effect or seek, offer or propose to acquire effect or agree participate in, an Extraordinary Transaction (it being understood that the foregoing shall not restrict the Restricted Persons from tendering (or failing to acquiretender) shares, Beneficial Ownership of any Voting Securitiesreceiving consideration or other payment for shares, other than voting its Voting Securities acquired (A) “for” or “against” any Extraordinary Transaction, or otherwise participating in any Extraordinary Transaction on the same basis as a result other stockholders of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) from directing any contact from a Third Party which may contemplate such an Extraordinary Transaction to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer Company or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofits Representatives);
(ii) enter into or agree, offer, propose (A) call or seek to call (whether publicly or otherwise), alone or in concert with others, a meeting of the Company’s stockholders or act or seek to act by written consent in lieu of a meeting (or the setting of a record date therefor), (B) to enter intoseek, alone or in concert with others, election or appointment to, or otherwise be involved in representation on, the Board or part nominate or propose the nomination of, or recommend the nomination of, any acquisition transactioncandidate to the Board, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” except as defined expressly set forth in Section 13(d1, (C) make or be the proponent of any stockholder proposal to the Company or the Board or any committee thereof to be voted on by the stockholders of the Exchange ActCompany, merger (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any member of the Board other than the New Director or (E) conduct a referendum of stockholders of the Company;
(iii) make any request for stock list materials or other business combination relating to all or part books and records of the Company or any of its subsidiaries pursuant to Section 220 of the General Corporation Law of the State of Delaware or any acquisition transaction other statutory or regulatory provisions providing for all stockholder access to books and records, except, for the avoidance of doubt, in connection with any matter as to which any litigation, arbitration or other proceeding would be permitted pursuant to Section 2(c)(x);
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under 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 become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents (other than with respect to the New Director in connection with the actions contemplated by Section 1(a));
(v) make any public proposal concerning the Company seeking to change the number or identity of directors of the Company or the filling of any vacancies or newly created directorships on the Board, any change in the capital allocation policy, dividend policy of the Company, any other change to the Board or the Company’s management or corporate governance structure or policy, or any waiver, amendment or modification to the Charter or the Bylaws or any Company Policies;
(vi) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other Person with respect to (A) the giving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (B) conducting any type of referendum of stockholders 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;
(vii) form, join or act in concert with any Group, with respect to any Voting Securities, other than a Group consisting solely of Investor Parties;
(viii) 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 Investor Parties or Affiliates of the Investor Parties or (C) granting proxies in solicitations approved by the Board;
(ix) 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 equity security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that (A) includes, relates to, or derives any significant part of its value from a decline in the assets market price or value of the equity securities of the Company and (B) would, in the aggregate or individually, result in the Investor Parties ceasing to have a “net long position” in equity securities of the Company;
(x) institute, knowingly 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 businessescurrent or former directors or officers (including derivative actions); provided, however, that negotiated private sales of shares of Common Stock the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions enforce any provision of this Agreement instituted in accordance with and subject to Section 5.1;
8, (iiiB) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely 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 and/or enforcing contractual rights that do not relate to the subject matter of this Agreement (including for the avoidance of doubt proceedings with respect to Debt Instruments held by the Investor Nominated Directors permitted by Parties or their Affiliates), (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xi) make any request or submit any proposal to amend or waive the terms hereof of this Agreement (including this subclause), in each case publicly or in a manner which would reasonably be expected to serve on result in a public announcement or disclosure of such Boardrequest or proposal; or
(xii) enter into any negotiations, makeagreements, arrangements, or in any way participate inunderstandings (whether written or oral) with, any such “solicitation” of “proxies” to voteor knowingly encourage, assist, solicit, or seek to advise or influence cause, any person or entity with respect Third Party to take any action that the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted Restricted Persons are prohibited from taking pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii2(c), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Cooperation Agreement (Anywhere Real Estate Group LLC)
Standstill. (a) The Investors hereby agree that from the Closing until the earliest of (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) Neither any member of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors Purchaser Group nor any Purchaser Successor shall enter into any transaction or series of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) transactions as a result of which the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum members of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan Purchaser Group, together with all Purchaser Successors, collectively would have beneficial ownership (as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as such term is defined in Section 13(d) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, as amended (the "Exchange Act")) in the aggregate of 50% or more of the outstanding voting securities of the Corporation, unless:
(i) in connection therewith, such member of the Purchaser Group or Purchaser Successor commences a tender or exchange offer for all of the outstanding voting securities of the Corporation (at a price at least equal to the market price thereof immediately prior to the earlier of the public announcement or commencement thereof) or acquires, or enters into an agreement to acquire, all of such voting securities pursuant to a merger or other business combination relating to all or part of transaction with the Company or any of its subsidiaries or any acquisition transaction for all or part of Corporation (it being understood that the assets of prohibitions set forth in the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions first sentence of this Section 5.1;
6 of this Article V shall not apply (iiiA) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of such offer, merger or transaction or (B) from and after the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting consummation of such Securitiesoffer, merger or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b)transaction if, but only so long if, as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 a result of the Exchange Act) by consummation thereof the members of the Purchaser Group, together with any Person Purchaser Successor, have beneficial ownership in the aggregate of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) % or more of the outstanding shares of Voting Securities voting securities of the CompanyCorporation);
(ii) on such transaction or series of transactions is approved by an affirmative vote of a majority of the decision by the Board or a duly constituted committee independent directors of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change Directors of Control;the Corporation; or
(iii) on the decision by the Board to recommend a party that stockholders approve is not an Affiliate of any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 member of the Exchange Act Purchaser Group or of any Purchaser Successor acquires (and continues to elect hold), or remove has announced its intention (and is currently seeking) to acquire, through any directors transaction or series of transactions, including through any tender or exchange offer, beneficial ownership in the aggregate of 25% or more of the Company;
outstanding voting securities of the Corporation or has announced its intention (ivand is currently seeking) on to effect a merger or other business combination transaction with the adoption Corporation as a result of which such party would become the beneficial owner of 25% or more of the outstanding voting securities of the surviving corporation of the merger or business combination, which merger or other business combination has been approved by the Board of Directors of a plan the Corporation; provided, however, in the event that any member of liquidation the Purchaser Group or dissolution; or
(v) on the occurrence of any material breach by the Company of Purchaser Successor makes any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors such acquisition pursuant to the Company setting forth exception provided in this clause (iii) then, unless such alleged breach acquisition was also in accordance with specificity. Upon clause (ui) any withdrawal or lapsing of any such tender (ii) above or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) unless either of the outstanding Voting Securities of the Companyfollowing paragraphs is also applicable, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee majority of the Board of a process to solicit a proposal Directors of the type referred Corporation shall continue to consist of independent directors. The requirements set forth in Section 5.1(b)(ii) without a Change 5 and Section 6 of Control having occurred this Article V shall cease to apply from and without an agreement after the first to effect a Change occur of Control, (x) the withdrawal or termination or failure such time as a majority of the solicitation referred to in Section 5.1(b)(iii)independent directors so determines, (y) the termination acquisition of beneficial ownership of 50% or more of the plan outstanding voting securities of liquidation referenced the Corporation under the circumstances described in Section 5.1(b)(iv), clauses (i) or (ii) above or (z) the remedy members of the Purchaser Group and the Purchaser Successors acquire aggregate beneficial ownership of 80% or more of the outstanding voting securities of the Corporation. In determining whether Section 5 and Section 6 of this Article V shall have ceased to apply at any time in accordance with this paragraph, the percentage beneficial ownership of the outstanding voting securities of the Purchaser Group and Purchaser Successors at any time shall be determined as follows: First, the number of shares of voting securities beneficially owned at such time by the Purchaser Group, together with the number of shares of voting securities beneficially owned by all Purchaser Successors, shall be the numerator. Second, the number of issued and outstanding voting securities of the Corporation at such time shall be determined and there shall be added to such number an amount of voting securities equal to the number of shares of Common Stock purchased by the Corporation from and after May 6, 2008. This number shall be the denominator. Third, the numerator, determined as provided above, shall be divided by the denominator, determined as provided above, and the resulting percentage shall be considered the percentage beneficial ownership of the Purchaser Group and all Purchaser Successors at such time. The foregoing determination, or any other calculation as to the beneficial ownership of the outstanding voting securities of any breach described Person, shall be made by the “independent directors”, based on such information, opinions, reports or statements presented by such Persons as the “independent directors” reasonably believe are within such Persons’ professional or expert competence and selected with reasonable care by or on behalf of the Corporation. Any such determination by the “independent directors” shall be conclusive and binding, absent manifest error. As used in Section 5.1(b)(v)these Articles, the limitations provided in Section 5.1(a) (except to following terms shall have the extent then suspended as a result meanings set forth below: An “Affiliate” of any other event specified in this Section 5.1(b)) Person shall again mean another Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person. Liberty Media Corporation and the Corporation shall not be applicable for so long as and only to the extent provided in this Agreementdeemed Affiliates of one another.
Appears in 1 contract
Sources: Letter Agreement (Directv Group Inc)
Standstill. Mutual hereby covenants and agrees that, on or before the fifth anniversary of the date hereof, it will not, and will cause Mutual Affiliates to not, without the prior written consent of a majority of the members of the Company's Board of Directors, do any of the following except pursuant to Section 2 hereof:
(a) The Investors hereby acquire, offer or agree that from the Closing until the earliest to acquire any shares of Common Stock (ior options or warrants to acquire, or securities convertible into or exchangeable for, shares of Common Stock) if, as a result of such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a number of shares of Common Stock in excess of a number equal to forty percent (4.940%) of the outstanding shares of Common Stock, Stock plus forty percent (ii40%) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval shares of Common Stock issuable upon conversion of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
Convertible Notes plus forty percent (i40%) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise number of any rights or obligations set forth in shares of Common Stock issuable upon conversation of the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Preferred Stock; provided, however, that that, for purposes of computing such amount, the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 29,800 shares of Common Stock authorized Beneficially Owned by Invista Capital Management, Inc. ("Invista") on November 3, 1997 shall be excluded from such calculation for issuance under as long as such shares are regarded as Beneficially Owned by Invista (and no longer) and provided that no executive officer or director of Mutual or Principal or any employee of Mutual, Principal, or any of their affiliates other than officers, directors or employees of Invista charged with the Company’s 2013 Equity Incentive Plan responsibility thereof shall participate in the voting of such shares and provided further that for so long as the Convertible Notes are outstanding, Mutual and the Mutual Affiliates, in the aggregate, will not vote or act on written consent in any matter coming before shareholders at any shareholder meeting or shareholder action in excess of forty percent (40%) of the date hereofshares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding;
(iib) enter into directly or agreeindirectly commence or participate in a solicitation of proxies either to oppose the election of any Person to the Board of Directors or to seek the removal of any Person from the Board of Directors, offer, propose or seek which Person has been nominated by the Nominating Committee of the Board of Directors;
(whether publicly or otherwisec) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of vote its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election of any Person to the Board solely with respect to any of Directors other than the Investor Nominated Directors permitted Persons nominated by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition Nominating Committee of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this AgreementDirectors; andor
(viid) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage make or participate in solicit or assist any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of third party to make a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding purchase any shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations Common Stock or make diligence materials availableany public announcement concerning, with respect or submit any written proposal to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company for a merger, share exchange, acquisition of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) substantially all of the outstanding Voting Securities of assets or similar transaction involving the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. (a) The Investors hereby Investor Parties agree that from the Closing until the earliest later of (i) such time as 90 days after the Investors first day on which no Investor Designee serves on the Board and their Affiliates the Investor has no longer collectively own at least four rights (or has irrevocably waived its right) under Section 5.10 (except for Section 5.10(f)) and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control expiration of the CompanyLock-Up Period (the “Standstill Expiration Date”), without the prior written approval of the CompanyBoard, neither the Investors nor any of its Affiliates willInvestor Parties will not, directly or indirectly, and will cause their Affiliates not to:
(ia) acquire, offer or propose seek to acquire, agree to acquire or agree make a proposal to acquire, Beneficial Ownership by purchase or otherwise, any equity securities or direct or indirect rights to acquire any equity securities of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, any securities convertible into or (D) exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way related to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership price of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under (solely to the Company’s 2013 Equity Incentive Plan as extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the aggregate, greater than 15% of the date hereof;
then outstanding Common Stock (ii) enter into which calculation shall, for the avoidance of doubt, include the notional or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale other number of its shares of Common Stock specified in the documentation for any Contract to a single purchaser or a “group” as defined in Section 13(d) which any of the Exchange ActInvestor Parties are party which is designed to produce economic benefits and risks to any of the Investor Parties that correspond substantially to the ownership by the Investor Parties of shares of Common Stock, merger except in the case of any such Contract which is settled only in cash));
(b) make or other business combination in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to all the election or part 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 subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, makeSubsidiaries, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries stockholders or initiate any stockholder proposal for action by the Common Stockholders Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director from the Board;
(c) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities of the Company or any Subsidiary of the Company, formor any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, join 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, to seek to control or influence, in any manner, the management, board of directors or policies of the Company or any of its Subsidiaries;
(e) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would 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 agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including forming, joining or in any way participate participating in a “group” (within the meaning of as defined in Section 13(d)(3) of the Exchange Act and the rules and regulations thereunderAct) with respect to any Voting Securitiesthird party in connection with any of the foregoing;
(vi) deposit any Securities of request the Company into 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 voting trust unless such voting trust is bound by confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.15.07, or subject the Securities of which the Company to may accept or reject in its sole discretion, so long as any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;request is made in a manner that does not require public disclosure thereof by any Person; or
(vij) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.15.07 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 5.07; provided, however, that nothing in clauses this Section 5.07 will limit (ii1) the Investor Parties’ ability to vote (subject to Section 5.11), Transfer or Hedge (iiisubject to Section 5.08), convert shares of Series A Preferred Stock into Common Stock (iv) subject to Section 6 of the Certificate of Designations), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, privately make and submit to the Company and/or the Board any proposal that is intended by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (vi) and would not reasonably be expect to require public disclosure by any Person), participate in rights offerings made by the Company to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Company held by the Investor Parties, tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer (subject to Section 5.08), effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights under its Common Stock or Series A Preferred Stock that are not the subject of this Section 5.1(a5.07 or (2) shall apply to the ability of the Investor Nominated Director(s) solely Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a director member of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacityBoard.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Standstill. For two years after the Closing Date, none of Buyer, the JEDI Entities or their respective Subsidiaries (a) The Investors hereby agree that from the Closing until the earliest will purchase any additional shares of Common Stock, or securities convertible into or exchangeable for shares of Common Stock, other than (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock, (ii) the fourth (4th) anniversary hereof or (iii) a Change of Control of the Company, without the prior written approval of the Company, neither the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1;
(iii) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption transactions approved by the Board of Directors of a plan Seller, (ii) the purchase of liquidation or dissolution; or
shares of Common Stock in connection with the Grand Gulf Transaction acquisition, (viii) on the occurrence purchase of any material breach by the Company shares of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors Common Stock pursuant to the Company setting forth such alleged breach with specificity. Upon provisions of Section 8.12 hereof, or (uiv) an Inadvertant Purchase, and (b) make or participate in making any withdrawal solicitation of proxies to vote Common Stock of Seller or lapsing of any such tender form, join or exchange offer referred to participate in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) a "group" for the purpose of the outstanding Voting Securities of foregoing without the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee approval of the Board of a process to solicit a proposal Directors of the type referred Seller. Notwithstanding anything herein to in the contrary, the provisions of this Section 5.1(b)(ii) without a Change of Control having occurred 8.5 shall terminate and without an agreement to have no further force or effect a Change of Control, if (x) the withdrawal or termination or failure at any time in which Buyer and its Affiliates hold more than 14% of the solicitation referred issued and outstanding shares of Common Stock, less than two designees of Buyer are elected to in Section 5.1(b)(iii)Seller's Board of Directors within 30 days after Buyer has requested the nomination and election of such designees, or (y) at any time in which Buyer and its Affiliates hold in the termination range of 7% through 14% of the plan issued and outstanding shares of liquidation referenced in Section 5.1(b)(iv)Common Stock, or one designee of Buyer is not elected to Seller's Board of Directors within 30 days after Buyer has requested the nomination and election of such designee (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended including as a result of any other the death or voluntary resignation of such a designee). Other than as expressly provided herein, Buyer will be free to exercise its rights as a stockholder, voting or otherwise, and regardless of whether the exercise of such rights might influence management, the Board of Directors or the stockholders of Seller. Buyer agrees that in the event specified that it transfers more than 10% of the issued and outstanding shares of Common Stock (determined as of the time of such transfer), then the transferee of such shares shall be bound by the restrictions set forth in this Section 5.1(b)) shall again be applicable for so long as and only 8.5 to the extent provided the same are in this Agreementfull force and effect at the time of such transfer.
Appears in 1 contract
Standstill. Except as otherwise expressly provided in this Agreement (including this Section 3.1 and Section 3.2 hereto), none of the Shareholder or any of its Affiliates shall, directly or indirectly, acting alone, in a Group (other than a Group consisting solely of the Shareholder, JFLEI and their Affiliates) or in concert with others:
(a) The Investors hereby by purchase or otherwise, Beneficially Own, acquire, agree that from the Closing until the earliest of or offer to acquire any Voting Securities or direct or indirect rights or options to Beneficially Own Voting Securities, including any voting trust certificates representing such securities (in each case, other than (i) such time as the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common StockShares, (ii) rights, options or warrants distributed on a pro rata basis to all holders of the fourth (4th) anniversary hereof class or classes of securities of the Company pursuant to distribution that has been approved by at least a majority of the Independent Directors constituting the entire Independent Committee, (iii) securities acquired from the Company pursuant to a Change rights offer, exchange offer or similar transaction made by the Company which has been approved by at least a majority of Control the Independent Directors constituting the entire Independent Committee; (iv) grants of restricted Voting Securities or options to purchase Voting Securities (and the exercise thereof) to an executive officer of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee; and (v) grants of restricted Voting Securities or options to purchase Voting Securities (and the exercise thereof) to a nonemployee director of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement pursuant to an equity compensation plan generally available to all nonemployee directors of the Company, without the prior written approval which grants have been approved by at least a majority of the Company, neither Independent Directors constituting the Investors nor any of its Affiliates will, directly or indirectly:
(i) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities, other than Voting Securities acquired (A) as a result of the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the Company, or (D) to maintain their aggregate percentage interest in the Company’s outstanding Common Stock; provided, however, that the Investor shall not be permitted to acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereofentire Independent Committee);
(iib) enter into or agree, offerenter, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in solicit any merger or part ofbusiness combination, tender offer, exchange offer or similar transaction involving the Company, or purchase, acquire, propose to purchase or acquire or solicit the purchase or acquisition of any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) portion of the Exchange Act, merger business or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any if, in each case, (i) in such transaction, all holders of its subsidiaries or any Voting Securities of their respective businesses; providedthe Company are not treated equally in terms of the dollar value at closing of the consideration, howeverif any, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound received by such holders or (ii) such transaction is entered into with Affiliates, members of a Group that includes the provisions of this Section 5.1Shareholder, JFLEI or their Affiliates or other Persons that are acting in concert with the Shareholder, JFLEI or their Affiliates to circumvent the foregoing provisions;
(iiic) other than a “solicitation” of a “proxy” (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or in any way participate in, any "solicitation" of "proxies" or become a "participant" in any "election contest" (as such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to terms are used in the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action proxy rules promulgated by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any Voting Securities;
(v) deposit any Securities of the Company into a voting trust unless such voting trust is bound by the provisions of this Section 5.1, or subject the Securities of the Company to any agreement or arrangement with respect to the voting of such Securities, or other agreement or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 5.1; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of Commission under the Exchange Act) by for the removal of any Person of a tender or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more member of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement with respect to the commencement of a proxy or consent solicitation subject to Section 14 of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolutionIndependent Committee; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Oao Technology Solutions Inc)
Standstill. (a) The Investors hereby agree that from During the Closing until the earliest of Standstill Term, except for (i) such time as otherwise contemplated by the Investors and their Affiliates no longer collectively own at least four and nine-tenths percent (4.9%) of the outstanding Common StockTransaction Agreements or Section 3.2 below, (ii) as the fourth (4th) anniversary hereof Company’s supervisory board or management board shall otherwise specifically request in writing, or (iii) a Change of Control of for any conversions, reclassifications, reorganizations, share dividends, share splits, reverse splits and similar events which occur with respect to the Company, without the prior written approval of the CompanyOrdinary Shares, neither the Investors Investor nor any of its Affiliates willPermitted Transferee (collectively, the “Standstill Parties”), shall (and the Investor shall cause any Permitted Transferee, as applicable, not to), directly or indirectly, except as expressly approved or invited in writing by the Company:
(ia) acquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of any Voting SecuritiesOutstanding Ordinary Shares and/or Ordinary Share Equivalents, or make a tender, exchange or other offer to acquire Outstanding Ordinary Shares and/or Ordinary Share Equivalents such that after such acquisition of Ordinary Shares and/or Ordinary Share Equivalents, and conversion of such Ordinary Share Equivalents, if applicable, the Standstill Parties would collectively Beneficially Own more than Voting Securities acquired (Ai) 4.9% of the Outstanding Ordinary Shares (as a result determined after giving effect to the Shares issued at the Initial Closing) after the Initial Closing Date but before the Second Closing Date, or (ii) more than 9.9% of the Outstanding Ordinary Shares (as determined after giving effect to Shares issued at the Second Closing) after the Second Closing Date but before the purchase of Ordinary Shares pursuant to the Seventh Target Warrant Agreement, or (iii) more than 14.9% of the Outstanding Ordinary Shares (as determined after giving effect to the Ordinary Shares issued upon the exercise of any rights or obligations set forth in the Standby Purchase Agreement or this Seventh Target Warrant Agreement, (B) after the purchase of Ordinary Shares pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) directly from the CompanySeventh Target Warrant Agreement but before the purchase of Ordinary Shares pursuant to the Tenth Target Warrant Agreement, or (Div) more than 19.9% of the Outstanding Ordinary Shares (as determined after giving effect to maintain their aggregate percentage interest in the Company’s outstanding Common StockOrdinary Shares issued upon the exercise of the Tenth Target Warrant Agreement) after the purchase of Ordinary Shares pursuant to the Tenth Target Warrant Agreement; provided, however, that (i) notwithstanding the Investor provisions of this Section 3.1(a), if the number of Outstanding Ordinary Shares is reduced or if the aggregate ownership of the Standstill Parties is increased as a result of a repurchase by the Company of Outstanding Ordinary Shares, share split, share dividend or a recapitalization of the Company, the Standstill Parties shall not be permitted required to acquiredispose of any of their holdings of Outstanding Ordinary Shares even though such action resulted in the Standstill Parties’ Beneficial Ownership increasing; and (ii) for purposes of clarification, the limitations set forth in this Section 3.1(a) shall in no way prohibit, restrict or limit the ability of the Standstill Parties to acquire Ordinary Shares on the open market or otherwise so long as, after giving effect to such acquisitions, the Standstill Parties do not hold in excess of the relevant percentage(s) of Ordinary Shares set forth above during the time periods set forth above;
(b) propose, offer or propose participate in any effort to acquire or agree to acquire, Beneficial Ownership of any Voting Securities to account for the dilutive effect of any issuance of equity securities up to a maximum of the 4,329 shares of Common Stock authorized for issuance under the Company’s 2013 Equity Incentive Plan as of the date hereof;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, any acquisition transaction, including a proposed negotiated private sale of its shares of Common Stock to a single purchaser or a “group” as defined in Section 13(d) of the Exchange Act, merger or other business combination relating to all or part of the Company or any of its subsidiaries or any acquisition transaction for all or part substantially all of the assets of the Company and its subsidiaries taken as a whole;
(c) propose, offer or participate in any tender offer, exchange offer, or other business combination or Change of Control transaction involving the Company or any of its subsidiaries subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary corporate transaction involving the Company or any of their respective businesses; provided, however, that negotiated private sales of shares of Common Stock to a single purchaser or a “group” will be permitted if the purchasing party agrees in writing to be bound by the provisions of this Section 5.1its subsidiaries;
(iiid) other than seek to call, request the call of, or call an extraordinary general meeting of the shareholders of the Company, or make or seek to make a shareholder proposal at any general meeting of the shareholders of the Company, or make a request for a list of the Company’s shareholders, or seek election to the supervisory board or seek to place a representative on the supervisory board, or seek the removal of any member from the supervisory board, or otherwise acting alone or in concert with others, seek to control or influence the governance or policies of the Company;
(e) solicit powers of attorney, proxies, designations or written consents of shareholders, or conduct any binding or nonbinding referendum with respect to Ordinary Shares, or make or in any way participate in any “solicitation” of a any “proxy” (power of attorney) to vote any Ordinary Shares with respect to any matter, or become a participant in any contested solicitation for the election of members of the supervisory board with respect to the Company (as such terms are defined under Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of the election to the Board solely with respect to any of the Investor Nominated Directors permitted by the terms hereof to serve on such Board, make, or used in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting election of any director to the Board;
(iv) call or seek to call a meeting of the Common Stockholders of the Company or any of the Company’s subsidiaries or initiate any stockholder proposal for action by the Common Stockholders of the Company, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations promulgated thereunder);
(f) make or issue or cause to be made or issued any public disclosure, announcement or statement (i) in support of any solicitation described in clause (e) above, (ii) in support of any matter described in clause (d) above, or (iii) concerning any potential matter described in clause (c) above;
(g) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” with respect to Ordinary Shares, or deposit any Ordinary Shares in a voting trust or similar arrangement, or subject any Ordinary Shares to any voting agreement or pooling arrangement, or grant any power of attorney with respect to any Voting SecuritiesPurchased Shares;
(vh) deposit any Securities of the Company into a voting trust unless such voting trust is bound except as otherwise provided by the provisions of this Section 5.1applicable law, rule or regulation, publicly disclose, or subject cause or facilitate the Securities of the Company public disclosure of, any intent, purpose, plan or proposal to obtain any agreement or arrangement with respect to the voting of such Securitieswaiver, consent under, or other agreement amendment of, any of these restrictions or arrangement having similar effect unless such agreement or arrangement conforms to the provisions of this Section 5.1;
(vi) seek representation on the Board or a change in the composition of the Board or number of directors elected by the holders of Common Stock or a change in the number of such directors who represent the Investor, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity or enforceability of this Section 5.1these restrictions or seek a release from these restrictions or obligations; provided, that nothing in clauses (ii), (iii), (iv) or (vi) of this Section 5.1(a) shall apply to the Investor Nominated Director(s) solely in his or her capacity as a director of the Company or to actions taken by the Investors or any of their Affiliates to prepare the Investor Nominated Directors to act in such capacity.
(b) The limitations provided in Section 5.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 5.1(b), but only so long as the Investors or any of their Affiliates did not directly or indirectly assist, facilitate, encourage or participate in any such events:or
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by enter into any Person of a tender discussions, negotiations, agreements or exchange offer seeking to acquire Beneficial Ownership of fifty percent (50%) or more of the outstanding shares of Voting Securities of the Company;
(ii) on the decision by the Board or a duly constituted committee of the Board (a) to solicit one or more proposals for a transaction that, if consummated, would result in a Change of Control or (b) to pursue discussions or negotiations or make diligence materials available, understandings with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control;
(iii) on the decision by the Board to recommend that stockholders approve any action proposed by a Person pursuant to the filing of a preliminary proxy statement Third Party with respect to the commencement foregoing, or advise, assist, knowingly encourage, support, provide financing to or seek to persuade any Third Party to take any action with respect to any of the foregoing, or act in concert with others or as part of a proxy or consent solicitation subject group with respect to Section 14 any of the Exchange Act to elect or remove any directors of the Company;
(iv) on the adoption by the Board of Directors of a plan of liquidation or dissolution; or
(v) on the occurrence of any material breach by the Company of any of its material obligations under this Agreement, which breach has not been remedied within thirty (30) days after notice is delivered by the Investors to the Company setting forth such alleged breach with specificity. Upon (u) any withdrawal or lapsing of any such tender or exchange offer referred to in Section 5.1(b)(i) in which such Person does not acquire more than fifty percent (50%) of the outstanding Voting Securities of the Company, (v) the withdrawal of all pending proposals referred in Section 5.1(b)(ii) without a Change of Control having occurred and without, or the termination of, an agreement to effect a Change of Control, or the decision of the Board or a duly constituted committee of the Board to reject all such proposals, (w) the abandonment by the Board or a duly constituted committee of the Board of a process to solicit a proposal of the type referred to in Section 5.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, (x) the withdrawal or termination or failure of the solicitation referred to in Section 5.1(b)(iii), (y) the termination of the plan of liquidation referenced in Section 5.1(b)(iv), or (z) the remedy of any breach described in Section 5.1(b)(v), the limitations provided in Section 5.1(a) (except to the extent then suspended as a result of any other event specified in this Section 5.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreementforegoing.
Appears in 1 contract
Sources: Investor Agreement (uniQure N.V.)